Use of Polygraph Examinations in the Department of Justice

Evaluation and Inspections Report I-2006-008
September 2006
Office of the Inspector General

SECTION I:  Polygraph Programs in the Department of Justice

THE FBI POLYGRAPH PROGRAM Background The FBI employed polygraph examiners as early as 1935. In the early to mid-1970s, the FBI sent agents for polygraph training first at Quantico, Virginia, and, in the late 1970s, to the U.S. Army Military Police School at Fort Gordon, Georgia. The FBI centralized its polygraph program in 1978. Before the mid-1980s, the FBI used polygraph examinations as an investigation tool in criminal cases. In the mid-1980s, the FBI began conducting polygraph examinations of its own agents when they held sensitive positions. FBI personnel already on duty, including Special Agents, were not required to take polygraph examinations unless they had access to certain sensitive programs or investigations coordinated through outside intelligence agencies. A few Special Agents in sensitive positions were tested when they were detailed to organizations outside the FBI (such as the CIA) where counterintelligence-scope polygraphs were required for authorization to access facilities and information. FBI personnel were also subject to polygraph examinations if they were investigated by the FBI’s Office of Professional Responsibility because of misconduct allegations. In 1985, the FBI began limited pre-employment testing and, by 1994, all applicants for FBI employment were required to undergo pre-employment polygraph examinations. The FBI’s Polygraph Program expanded greatly in the wake of the arrest of FBI Special Agent Robert Hanssen for espionage in February 2001. After Hanssen’s arrest, the FBI implemented a Personnel Security Polygraph Program that requires specified personnel to undergo personnel security polygraph examinations as a deterrent to those contemplating espionage or engaging in espionage within the ranks of the FBI. Also, the numbers of pre-employment screening polygraph examinations conducted by the FBI have grown significantly since 2001 because of hiring initiatives following the September 11, 2001, terrorist attacks. As shown in Figure 2 on the next page, overall there has been a 30-percent decline in the numbers of polygraphs conducted by the FBI for operations,39 but a 78-percent increase in the overall number of screening polygraphs (i.e., pre-employment and personnel security screening) from FY 2002 to FY 2005. Source: FBI Polygraph Unit This shift in polygraph priorities was supported in part by a recommendation in A Review of FBI Security Programs, published by the Commission for the Review of the FBI Security Programs (the Webster Commission), dated March 31, 2002. The Webster Commission recommended that the FBI implement a counterintelligence polygraph program for employees and non-FBI personnel with access to Sensitive Compartmented Information (SCI) and special access clearance. Since that time, the FBI has elevated the role of personnel security within the FBI, brought personnel security expertise to the FBI from other intelligence agencies, established a Security Division and appointed a Director of Security, and shifted internal resources (including moving the Polygraph Unit from the Laboratory Division to the Security Division) as part of an ongoing restructuring plan.40 In June 2002, the FBI Director approved the expansion of the Personnel Security Polygraph Program to make it a permanent part of the FBI security process. From March 2001 through February 2005, the FBI also expanded the number of FBI positions for which it requires periodic and random personnel security polygraphs for access to sensitive and national security information from approximately 550 positions to 18,384 employees and Joint Terrorism Task Forces (JTTF) members. All personnel assigned to FBI counterintelligence, counter-terrorism, and security programs fall under the requirement for personnel security polygraph examinations, including state and local law enforcement personnel serving on JTTFs. Other FBI elements that require personnel to undergo personnel security screening include the Cyber Division, Records Management Division, Directorate of Intelligence, and Information Technology Operations Division. According to the Chief of the Personnel Security Adjudication Section and the Chief of the Polygraph Unit, the FBI is considering requiring all personnel who have access to FBI space, information, and information systems to undergo periodic and random counterintelligence-scope polygraph examinations. Non-FBI personnel would also be included, among them employees of other Department components, JTTF members, and FBI contractor employees. Although no specific deadline has been set for imposing this requirement, if implemented, it would raise the number of FBI positions subject to this requirement to approximately 35,000.41 To establish an infrastructure to support the expansion of the polygraph program, the FBI Polygraph Unit Chief, in FY 2004, established regional manager positions, which placed a supervisory polygraph examiner in each of seven geographical regions to provide supervisory reviews of polygraph examinations as part of the FBI’s quality control process. In addition, the FBI increased its polygraph examiner workforce. In FY 2005, the Polygraph Unit hired 21 new examiners, and all were expected to complete DoDPI training by December 2005. Besides using polygraph examinations in criminal investigations and personnel security and pre-employment screening, the FBI uses polygraph examinations in counterintelligence and counterterrorism investigations and in misconduct investigations involving FBI employees. The FBI also conducts many of the polygraph examinations requested by Department components that use the results of polygraph examinations but that do not have their own polygraph capability. It also provides support to other organizations such as the Department of State, the Department of the Interior’s Bureau of Indian Affairs, and the Department of Defense. During FY 2005, FBI examiners conducted over 11,000 polygraph examinations in the United States and abroad. The FBI’s Polygraph Unit provides support to the FBI’s Administrative Services; Counterintelligence, Counterterrorism, Criminal, and Security Divisions; Office of Professional Responsibility, Legal Attaché Offices, and all FBI field offices. Mission and Purpose The FBI’s Polygraph Unit is located within the FBI’s Security Division, in the Personnel Security Adjudication Section. The stated mission of the Personnel Security Adjudication Section is to protect FBI people, facilities, and information by ensuring the trustworthiness of FBI employees and non-FBI personnel through initial and continued vetting and counterintelligence measures. The mission of the FBI Polygraph Unit is to provide polygraph support to the FBI by conducting polygraph examinations in criminal, counterintelligence and counterterrorism, and misconduct investigations; pre-employment and personnel security screening; and as requested by other agencies. Policies and Regulations The FBI polygraph program is governed by the FBI Security Division’s Security Policy Manual, the Polygraph Examiner Manual, the FBI’s Manual of Administrative Operations and Procedures (MAOP), and the Manual of Investigative Operations and Guidelines (MIOG). The Security Policy Manual was developed in response to recommendations made in the 2002 Webster Commission report and the FBI Director’s subsequent security program improvement initiatives. As previously discussed, the Webster Commission was established in March 2001 to review FBI security programs in the aftermath of the Robert Hanssen espionage case. The Security Policy Manual, which took effect on December 1, 2005, consolidated FBI security policy regarding the use of polygraph examinations that was previously contained in the MAOP, MIOG, and other applicable security policy documents issued by the Security Division.42 However, the Security Policy Manual does not address the use of polygraph examinations in criminal investigations. The MIOG continues to be the primary source of FBI guidance for the use of polygraph examinations in investigative operations. The Security Policy Manual contains FBI policies regarding the use of polygraph in personnel security matters. Among other things, the Security Policy Manual addresses approving authorities, identifies personnel subject to routine polygraph examinations, those subject to specific-issue examinations, the consequences of refusing to take a voluntary polygraph examination, instances in which an FBI employee can be ordered to undergo an examination, and the consequences of a Deception Indicated polygraph result. The Polygraph Examiner Manual, which was last revised in 2006, contains technical guidance for examiners on conducting, evaluating, and reporting the results of a polygraph examination. Its provisions largely reflect those found in the Federal Examiner Handbook. The MIOG, Part 2, is still the primary source of general polygraph policy and procedures and of policy and procedures for the use of polygraph examinations as a tool in criminal investigations. However, the MIOG has not been revised to reflect changes resulting from the reorganization of the FBI’s Polygraph Unit, which moved from the Laboratory Division to the Security Division. Organization and Staffing The FBI’s polygraph program comprises the Polygraph Unit at FBI Headquarters and a field structure comprised of a total of 119 personnel. Chart 2 shows the FBI’s polygraph program organizational structure. Chart 2:  FBI Polygraph Organization Structure [Image Not Available Electronically] Source:  Organization chart provided by the FBI, with field examiners added by the OIG Headquarters Structure and Staff The FBI polygraph program is managed by the Polygraph Unit, which is responsible for: establishing technical standards, supervising the work of the Regional Polygraph Program Managers and polygraph work by field examiners, conducting quality control reviews of all FBI polygraph examinations, administering polygraph examinations in high-profile and sensitive investigations, equipping and supplying examiners, coordinating examiner assignments, responding to requests for services from other federal agencies, providing technical assistance to FBI Headquarters personnel and field managers, and conducting training. As of August 24, 2006, the Polygraph Unit Headquarters had a staff of 18, which included a GS-15 Unit Chief, 2 Supervisory Special Agent Examiners assigned to DoDPI as trainers, 1 management assistant, 2 program analysts, 4 contractor personnel, and 8 Supervisory Special Agent Examiners. Polygraph examinations for pre-employment screening, personnel security, and Inspection Division inquiries that are conducted in the field are primarily initiated and requested by FBI Headquarters staff through the Polygraph Unit. Field Structure and Staff As of August 24, 2006, the FBI polygraph program’s field organization comprised 5 Regional Polygraph Program Managers (regional managers) who were responsible for overseeing the polygraph work of 96 field examiners. Each of the 5 regional managers supervises the polygraph work of between 18 to 20 field examiners who are special agents and conduct polygraph examinations as a collateral duty. They are under the operational supervision of the SAC of their assigned field offices. The field examiner positions include a number that were added in 2005 in preparation for the expansion of the FBI’s Personnel Security Polygraph Program. The FBI created the regional manager positions in 2004 by realigning eight GS-14 supervisory positions from Headquarters to five regions that provide coverage of the field offices. The regional managers are physically located in field division offices and are responsible for providing oversight of all polygraph operations in their assigned geographic regions. The field staff report directly to the Special Agent in Charge (SAC) of their field offices, but receive their administrative direction, quality control reviews, and work performance assessments from the Polygraph Unit. The regional managers conduct quality control reviews of the results of specific-issue polygraph examinations conducted in field offices assigned to their region. They also provide direction, training, and assistance to field examiners in their regions and coordinate personnel security polygraph testing of individuals in their region as identified by FBI Headquarters. Polygraph Examination Uses and Procedures The FBI uses polygraph examinations for five primary purposes: pre-employment screening, personnel security screening, counterintelligence and counterterrorism investigations, criminal investigations, and administrative investigations. The FBI also conducts polygraph examinations at the request of other federal agencies. Refusing to Take a Polygraph Examination According to the FBI’s Security Policy Manual, all polygraph examinations are “voluntary” – any individual can refuse to submit to an examination. Individuals that consent to undergo a polygraph examination must do so in writing. However, although consent is required, a refusal may have negative consequences, including an employee’s dismissal from the FBI. Even though an individual may only agree to a polygraph examination to avoid negative consequences, the decision to submit to a polygraph examination is still considered voluntary by the FBI. The Chief of the Personnel Security Adjudication Section told us that sanctions are decided on an individual basis. The specific consequences of a refusal depend on the purpose for which the polygraph examination would be used (i.e., pre-employment screening, personnel security screening, misconduct investigations, witness security, etc.). For example: All applicants for employment with the FBI must consent in writing to submit to and pass a mandatory pre-employment polygraph examination as a condition of eligibility for employment consideration. The Fifth Amendment right against self-incrimination protects criminal defendants from being compelled to take polygraph examinations, and the results of a polygraph examination are, by and large, inadmissible in a criminal prosecution. However, some defendants may agree to take a polygraph as part of a pre-sentencing agreement. Employees who refuse to submit to mandatory or compelled polygraph examinations, such as during periodic security reinvestigations, or investigations of national security matters, may face negative consequences, such as transfer to a position with no access to sensitive information, denial or re-evaluation of their security clearance, or disciplinary action for misconduct (insubordination). Since holding a security clearance is a condition of employment, revocation of an employee’s clearance could also lead to dismissal. For employees asked to take a polygraph examination related to an administrative matter, the consequences of refusal depend on the circumstances of the request. For example, employees who are subjects or witnesses in routine administrative investigations may decline to take a polygraph examination without adverse administrative consequences. Only specific senior FBI officials are authorized to compel FBI employees and certain others to submit to polygraph examinations under specific circumstances, according to the Security Policy Manual. The Assistant Director, Security Division, is authorized to compel any FBI employee or a non-FBI person with access to FBI information or facilities to submit to a polygraph examination to resolve specific issues that may have an impact on a person’s trustworthiness.43 The Assistant Director, Inspection Division, can compel an employee to submit to a polygraph examination to resolve an issue during the investigative phase of a disciplinary matter if the employee first refuses voluntarily to take a polygraph and if the matter involves one or more of the following seven serious violations: Intentional and unauthorized release of sensitive, protected information; Relationship with or allegiance to a foreign power; Illegal or improper exercise of influence; Intentional and unauthorized destruction, alteration, misplacement, taking, falsification or other impairment of FBI documents or evidence; Use of or unauthorized dealing in controlled substances; False statements or the failure to candidly disclose information; and Theft, fraud, and misuse of government money and property. When an FBI official orders an employee to submit to a polygraph during an administrative investigation, the Security Policy Manual requires the official to first inform the employee of the consequences of a refusal and that failure to cooperate during the requested examination will be considered a refusal. If an employee refuses to take an examination when compelled during the adjudication process, the FBI’s Office of Professional Responsibility can treat the refusal as if the subject had failed the examination. However, the FBI policy also states that an employee’s refusal to take a polygraph when compelled will not by itself substantiate the original misconduct charge. Inconclusive or Deception Indicated Results The FBI also has policy concerning actions that may be taken based on the results of polygraph examinations. For pre-employment polygraph examinations, if the examination results are Deception Indicated, or if the examiner cannot render an opinion, then the applicant normally is not hired. The FBI policy allows an applicant to appeal the results of a polygraph examination, in which case the FBI may grant the applicant a retest. For polygraph examinations administered to employees, if the results are Inconclusive, Deception Indicated, or No Opinion, and the employee makes no admission, then the test result is considered “unexplained” or referred to as an “examination pending resolution.” The FBI policy states that no adverse action will be taken based solely on the results of a polygraph examination. In October 2005, the Chief of the FBI’s Personnel Security Adjudication Section told us that the FBI had not taken adverse action against any employee based solely on the results of a polygraph examination. Instead, the FBI may retest the employee or initiate an investigation to resolve the issues raised by the examination. In the case of a personnel security polygraph, the Polygraph Unit reports “unexplained” results to the Assistant Director, Security Division, who functions as the FBI’s Security Program Manager. The Assistant Director, Security Division, in conjunction with the employee’s division head, the Counterintelligence Division, and other appropriate management officials, initiates (1) a security risk assessment of the employee’s continued access to sensitive information and (2) an investigation to resolve the unexplained results. An employee working in a sensitive area may be reassigned until the investigation is completed. If derogatory information is uncovered during the investigation, the employee may be suspended or the employee’s security clearance may be revoked. However, if no information is developed that indicates the examinee has engaged in a prohibited activity, the Security Division conducts an assessment of the security risk of allowing the person continued access to sensitive or national security information. According to the Chief of the Personnel Security Adjudication Section, the FBI has employees whose polygraph examinations resulted in an Inconclusive or Deception Indicated opinion, but the results were not corroborated by a follow-on investigation, and those employees have been cleared to continue working. The policy and processes for conducting each type of polygraph examination vary slightly. In the following sections, we discuss each use. Pre-Employment Polygraphs Under FBI security policy, all job applicants must undergo a pre-employment polygraph examination on issues that relate to their trustworthiness.44 The process begins when an applicant receives a “Conditional Job Offer” for a position at the FBI and completes a Personnel Security Interview, which may be conducted by an FBI agent. The Security Division’s Personnel Security Investigations Section makes a request to the Polygraph Unit to conduct polygraph examinations of applicants for both FBI Headquarters and field office positions. From FY 2002 through 2005, the FBI performed 23,310 pre-employment polygraph examinations. For applicants for Special Agent positions, the FBI conducts the polygraph examination before beginning the background investigation. That enables the FBI to limit the costs of conducting a background investigation when applicants are determined to be ineligible for employment based on their polygraph examination results, e.g., they admitted to disqualifying behavior during the examination process. The FBI investigators are also able to use information gathered during the polygraph examination to focus background investigations. FBI Security officials said that, before 2005, all applicants were given polygraph examinations before their background investigations were initiated, but in 2005 the FBI decided to begin the background investigation process for non-agent applicants before conducting their polygraph examinations as a time-saving measure. Pre-employment polygraph examinations are generally conducted by field office examiners working directly with the field office applicant coordinators and the Polygraph Unit. The examiners use information gathered during the Personnel Security Interview in formulating test questions during the pretest phase of the examination. The applicants are then given non-specific, full-scope polygraph examinations. Once an examination is completed, the examiner forwards the records and the examiner’s initial opinion on the results to the Polygraph Unit at FBI Headquarters for an independent quality review. For completed pre-employment polygraph examinations, there are three potential outcomes –No Deception Indicated, Deception Indicated, and Inconclusive –Inconclusive – based on the final opinion: When the final opinion is No Deception Indicated, the applicant’s employment processing continues. The applicant may be hired after successfully completing the remaining requirements, such as a successful background investigation. When the final opinion is Deception Indicated, the results are reported to adjudication officials who decide whether to disqualify the applicant or, based on other information available to the adjudicators, request that the applicant be retested. According to FBI Security officials, the Personnel Security Adjudications Unit makes all hiring decisions. FBI officials reported that test results in which an applicants have been determined to have been deceptive have been validated by confessions or admissions in over 50 percent of all cases. FBI officials said that when an applicant’s test result is Inconclusive, the applicant is automatically retested. However, if an examiner suspects that an applicant is attempting to use countermeasures and the examiner’s suspicion is confirmed during the quality control review, or the supervisory reviewer detects the use of countermeasures during their review, the Polygraph Unit usually recommends that the applicant receive no further testing. The FBI does not have written policy or procedures that require FBI officials to report the results of a failed polygraph examination to an applicant’s employing agency when the applicant is already a federal employee who is applying for an FBI law enforcement position. According to an FBI official in the Security Division, Adjudication Section, each case “would be examined and particular attention would be given to foreign counterintelligence issues.” The official said that the FBI would have an obligation to report an Inconclusive or Deception Indicated result that the FBI could not resolve to the employee’s home agency. She said that, should the polygraph examination raise a foreign counterintelligence issue, the FBI would refer the matter to its Counterintelligence Division for follow-up. The applicant’s information would also be entered into an FBI database that is used to alert other agencies of an applicant who might go from agency to agency trying to get hired. She said the FBI would also contact an appropriate security official in the Department’s Security and Emergency Planning Staff (SEPS).45 However, she was not aware of any instances in which the FBI had reported such information on a Department employee to SEPS. She said there had been instances in which polygraph results of employees from other departments were referred to the employing agency. Personnel Security Polygraphs As of January 24, 2006, all FBI and non‑FBI personnel assigned to the FBI’s Directorate of Intelligence, Counterintelligence Division, Counterterrorism Division, Cyber Division, Security Division, Office of the Chief Information Officer, and the Information Technology Operations Division were required to undergo random and periodic polygraph examinations.46 In addition, selected personnel with access to FBI information or facilities who are identified by the Assistant Director, Security Division, as persons whose circumstances suggest that they are or could be subjected to coercive influences also may be asked to submit to a polygraph examination on a periodic basis.47 The personnel security polygraph program is intended to serve as an investigative tool and as a deterrent to espionage. The FBI Director has delegated to the Assistant Director of the Security Division the authority to approve polygraph examinations relating to security clearance adjudication and to compel any FBI or non-FBI personnel with access to FBI information or facilities to submit to a polygraph examination to resolve specific security issues. Between 2001 and 2005, the number of FBI and non-FBI personnel subject to mandatory random and periodic testing under the Personnel Security Polygraph Program increased from 550 to 18,384. The FBI conducted a total of 4,721 personnel security polygraph examinations from FY 2002 through 2005. The FBI’s Security Policy Manual contains a provision concerning a potential future expansion of the FBI’s Personnel Security Polygraph Program, “This policy will expand to apply to other FBI divisions over time.” The Chief of the Personnel Security Adjudication Section explained that this provision reflects the FBI’s consideration of a plan to expand the requirement for periodic and random counterintelligence-scope polygraph examinations to all of the FBI’s approximately 35,000 employees, contractors, task force members, and a number of non-FBI personnel with special access. According to the Chief of the Personnel Security Adjudication Section, the FBI’s plan is meant to improve personnel security, deter and detect espionage, and counter criticisms of the FBI’s security program in the wake of the Hanssen spy case. The Section Chief said that the FBI’s program was being expanded in response to recommendations contained in the Webster Commission’s report and because the FBI wants to strengthen its security program in awareness of insider threats to security.48 FBI officials began implementing this program in 2001 and have since increased the number of affected positions from 550 in 2001 to approximately 18,000 in 2005, with approximately 400 non-FBI personnel also being polygraphed each year.49 According to the Chief of the Personnel Security Adjudication Section, that office, in conjunction with a Field or Division Security Officer, notifies employees when they have been randomly selected for a polygraph examination or when they will be required to undergo a polygraph as part of a periodic security reinvestigation. If the employee refuses to take a polygraph examination, the employee may be transferred to a less sensitive position, referred to the FBI’s Office of Professional Responsibility, subjected to a security risk assessment, or have his or her security clearance reevaluated. Employees who consent to polygraph examinations first undergo Personnel Security Interviews with their Security Officers. The employees are then given polygraph examinations by examiners who are personally unfamiliar with the subjects. Individuals who are subject to personnel security polygraph examinations receive non-specific, counterintelligence-scope security polygraphs. According to FBI officials, test questions are limited to security issues raised by federal adjudication guidelines. After the examination is completed, the examiner forwards an examination report to the Polygraph Unit at FBI Headquarters, where it undergoes a quality review by a supervisory examiner who issues a final opinion on the results of the examination and forwards a report to the Security Division. According to the Chief of the FBI’s Personnel Security Adjudication Section, the potential outcome for a completed personnel security examination is based on the final opinion: When the final opinion is No Deception Indicated, the Polygraph Unit notifies the Security Program Manager that the employee “passed” the examination. When the final opinion is Inconclusive or No Opinion, the Personnel Security Adjudication Section usually orders a retest to see whether the examiner can reach a conclusive, final opinion – that is, a finding of Deception Indicated or No Deception Indicated. If the retest does not result in a conclusive opinion of No Deception Indicated, the FBI will conduct a security risk assessment or an investigation to resolve the issues. When the final opinion is Deception Indicated, the FBI will attempt to determine whether the employee poses a security risk. The Analysis and Investigations Unit may conduct a more focused background investigation of the employee, including a thorough interview in an attempt to resolve the issues. The Security Program Manager can also recommend a range of other actions such as another retest, reassignment to a less sensitive position, or the initiation of a criminal investigation. According to FBI officials, an agent in a sensitive position will be reassigned until issues stemming from the examination can be resolved. If the individual is not in a sensitive position, he or she may be allowed to remain in the position. If the Analysis and Investigations Unit finds no evidence to corroborate an issue of potential deception, the Security Program Manager may wait to act until the employee undergoes another periodic security examination. According to FBI Security officials, the FBI has never discharged an FBI employee solely on the basis of a personnel security polygraph examination. In 2004, the Security Division initiated a process for compelling personnel to undergo a polygraph examination to resolve specific issues regarding their trustworthiness. In such cases, the Assistant Director of the Security Division is authorized to compel any FBI or non-FBI personnel with access to FBI information or facilities to take a polygraph examination if the employee is suspected of unauthorized contact with or providing sensitive or classified information to a foreign intelligence service or if the employee poses a security risk to the FBI in some capacity. Foreign Counterintelligence and Counterterrorism Investigations The FBI uses polygraph examinations during counterintelligence and counterterrorism investigations to resolve specific issues related to espionage, sabotage, or validation of information sources, as well as to make resource decisions such as whether to conduct surveillance. FBI officials told us that the process for initiating, approving, and conducting polygraph examinations and using their results in counterintelligence and counterterrorism investigations is similar to that for criminal investigations. As with polygraphs conducted for criminal investigations, which will be discussed in the next section, the FBI Director has delegated approving authority for polygraph examinations used in connection with non-administrative investigations to the Assistant Director in Charge, SAC, or person acting in that capacity on a specific investigation. Consistent with that policy, polygraph examinations conducted in counterintelligence and counterterrorism investigations require the written approval of the Assistant Director in Charge or the SAC of the relevant field office. The FBI conducted a total of 1,994 counterintelligence and counterterrorism polygraph examinations from FY 2002 through 2005. Polygraphs conducted for counterintelligence investigations are overseen by the Counterintelligence Division, which provides centralized management and oversight of all foreign counterintelligence investigations. Any government agency can refer a case for investigation by the Counterintelligence Division, including requesting a polygraph examination. As with polygraph examinations used in other FBI investigations, the case agent requests authorization to conduct a polygraph examination from the SAC of the field division.50 The Counterintelligence Division also has to give permission before a field office can interview a case subject, including conducting a polygraph examination. The Section Chief, Counterespionage Section (part of the Counterintelligence Division), said that the decision on whether to use a polygraph examination depends on the specifics of each case. According to the Chief of the Counterespionage Section, between 65 and 85 percent of the subjects in espionage cases undergo polygraph examinations. The conduct of a polygraph examination in a counterintelligence investigation depends on the purpose for the test. Polygraph examinations are also used during counterintelligence investigations to validate sources in high-risk investigations and at the end of investigations as a final check of case facts. The results obtained through polygraph examinations during counterintelligence investigations may be used several ways. If the case began as a referral from another agency, the results would be provided to the referring agency, and that agency would take the appropriate action. If the subject was an FBI employee and they did not pass the foreign counterintelligence elements of the polygraph test, further investigation would be conducted.51 If that investigation confirmed the results of the polygraph, and no foreign government was involved, the case would be referred to the FBI’s Office of Professional Responsibility for adjudication. If a foreign government was involved, and a crime was detected, the case would be referred to the Criminal Investigative Unit for prosecution. Criminal Investigations The FBI uses polygraph examinations during criminal investigations to resolve specific issues related to developing investigative leads and information; to verify information provided by subjects, witnesses, and informants; and to elicit confessions. The FBI Director has delegated approving authority for polygraph examinations used in connection with non-administrative investigations to the Assistant Director in Charge, SAC, or person acting in that capacity on a specific investigation. In field offices, the SAC can authorize polygraph examinations in connection with ongoing cases. From FY 2002 through 2005, the FBI performed 6,203 polygraph examinations related to criminal investigations. Requests for specific-issue polygraph examinations that originate in the FBI’s field offices are handled and scheduled by the polygraph examiner assigned to that field office. The case agent usually talks with an examiner to determine whether a polygraph examination should be conducted. The case agent obtains the SAC’s approval for conducting the test, and the examiner and the case agent set a mutually agreeable date for conducting the test. Prior to an examination, the examiner discusses with the case agent the facts and issues of the case and why a polygraph examination is needed. All examinees must voluntarily consent in writing to undergo a polygraph examination. After the FBI issues a final opinion on the results of a polygraph, a copy of the polygraph report and test charts are provided to the case agent for inclusion in the investigative file. If the examination was requested by an Assistant United States Attorney, the case agent or the agent’s supervisor is responsible for providing the attorney with a copy of the polygraph examination report. In general, the results of polygraph examinations in criminal investigations are used as a tool to focus and direct the investigation and to elicit information and confessions. According to Department policy, the results of polygraph examinations are generally not used in court proceedings. However, voluntary admissions and statements made by individuals during examinations may be used in testimony.52 Misconduct Investigations The FBI conducts polygraph examinations to resolve allegations against FBI employees or to confirm the veracity of a complainant in an administrative investigation involving potential disciplinary action. The FBI conducted a total of 128 polygraph examinations related to misconduct investigations from FY 2002 through 2005. The FBI Director has delegated the authority to approve polygraph examinations concerning employee disciplinary matters to the Assistant Director, Inspection Division. FBI regulations identify two types of administrative polygraph examinations – a voluntary examination and a compelled examination an employee is ordered to take. The FBI’s Inspection Division decides whether or not to conduct an investigation and, if so, whether it will request an employee to volunteer to take a polygraph or order an employee to submit to a polygraph when needed. The results of these polygraph examinations are used to make investigative or adjudicative decisions. Other Agency Requests The Polygraph Unit has provided services for the DEA and BOP and also for other federal agencies, including the Department of Defense, Department of State, and the Department of the Interior’s Bureau of Indian Affairs. It has routinely conducted polygraph examinations for the Department’s ATR, Criminal Division, JCC, NDIC, OPR, and USMS. The unit has also provided foreign governments with support – primarily the governments of Mexico and Colombia – by conducting polygraph examinations of their investigation units. Between FY 2002 and 2005, the FBI’s Polygraph Unit reported that FBI examiners conducted 1,661 polygraph examinations at the request of other federal agencies and foreign governments. An outside federal agency or foreign government must provide a written request for services. A polygraph examination will be conducted in response only after the Assistant Director, Security Division has approved the request and the Polygraph Unit has determined that resources are available and that FBI priorities will not be affected by responding to the request. When a polygraph examination is done in response to one of these requests, the Polygraph Unit is responsible for arranging and scheduling the examination if it is to be conducted by an examiner at FBI Headquarters. If it is to be done in the field, the SAC of the field office must also approve the request, and an examiner in the field office schedules and conducts the examination. The requesting agency receives a copy of the examination report and a copy of the report is also retained for 2 years in the examiner’s file. Examiner Qualifications and Training The FBI selects polygraph examiners from among its Special Agent workforce. Candidates must have at least 5 years of FBI investigative experience and demonstrated success as an interviewer, interrogator, and case agent in complex investigations. Candidates must also have the ability to perform well under stress and in confrontational situations. Prior to selection, examiner candidates must undergo a personnel security polygraph examination. Candidates with prior experience at conducting polygraph examinations must have completed a basic polygraph course at a polygraph school approved by the FBI or certified by the American Polygraph Association. Candidates who are not experienced examiners or do not have training from an approved school are sent to DoDPI’s 14-week course for examiner trainees. After graduation from the DoDPI course, new examiners are mentored by a senior examiner during a supervised internship. New examiners receive 1 week of specialized training in the Polygraph Unit, and their first 12 examinations are monitored by a senior examiner. Examiners who successfully complete all required training and a 1-year internship, during which they complete at least 48 polygraph examinations, are certified by the FBI. FBI examiners are required to complete at least 48 polygraph examinations a year to maintain their certification. They also must complete a minimum of 80 hours of polygraph-related training every 2 years as part of their continuing education. Because of the extensive training provided to new FBI examiners, they are expected to serve for a minimum of 3 years. As of December 2005, the FBI Polygraph Unit’s supervisory personnel had an average of 18 years of investigative experience and an average of 9 years of polygraph experience. Field examiners had an average of 17 years of investigative experience and 9 years of polygraph experience. Workload and Program Costs The FBI’s polygraph program is the largest in the Department, both in the number of polygraph examinations conducted each year and the financial resources dedicated to the program. From FY 2002 through 2005, the FBI conducted 38,017 polygraph examinations (Table 4). The number of examinations conducted annually increased by approximately 45 percent from FY 2002 to 2005. Most of the increase resulted from increases in the number of pre-employment and personnel security polygraph examinations, which by FY 2005 accounted for approximately 79 percent of the polygraph examinations conducted by the FBI. At the same time, the FBI’s use of polygraph examinations in criminal investigations dropped by over 40 percent, from almost 2,100 to about 1,200. Table 4: FBI Polygraph Unit Workload by Use FY 2002 through 2005   Pre-Employment Criminal Personnel Security FCI/CTa Misconduct For Other Agency Total 2002 4,685 2,098 331 441 33 166 7,754 2003 4,354 1,562 665 422 39 378 7,420 2004 7,848 1,351 1,244 552 35 537 11,567 2005 6,423 1,192 2,481 579 21 580 11,276 Total 23,310 6,203 4,721 1,994 128 1,661 38,017 a Counterintelligence (CI) and Counterterrorism (CT). Source: FBI Polygraph Unit As previously discussed, the FBI is considering policy changes that could increase the number of FBI and non-FBI personnel required to undergo periodic or random personnel security polygraph examinations to approximately 35,000 individuals. If the FBI requires all 35,000 employees to undergo personnel security polygraph examinations, the number of personnel security examinations would increase from 2,481 conducted in FY 2005 to over 7,000. Polygraph Program Costs At our request, the FBI’s Polygraph Unit and budget and finance offices provided us with estimates of polygraph program budget and cost data for FY 2003, 2004, and 2005. In FY 2002, the Polygraph Unit did not have a separate budget because it was part of the FBI’s Laboratory Division, and funding for the polygraph program was not separately identified within that Division’s budget. Subsequently, the Polygraph Unit was transferred to the FBI’s Security Division. Although records of the funding dedicated to the polygraph program were not maintained, the FBI estimated for us that it spent approximately $6 million in FY 2002 to establish the polygraph program as part of the Security Division and to cover the salaries of its full-time examiners.53 The FBI requested additional funding for FY 2003 to expand its polygraph program to conduct an additional 7,100 personnel security polygraph examinations annually. For FY 2003, Congress provided an additional $6.8 million, which included $4.5 million for Polygraph Unit operations and $2.3 million for hiring 15 new examiners and 2 new program analysts. These additions raised the authorized number of examiners from 73 to 88. The money requested for hiring new examiners included only the costs for new examiner training and equipment, not the cost of salaries. In the FBI, all personnel costs are centrally funded and managed. The FBI estimated for us that its FY 2003 expenditures for Polygraph Unit operations, authorized new hires, and full-time examiner salaries was approximately $7.5 million.54 In its FY 2004 budget request, the FBI sought another budget enhancement of $5.7 million for hiring, training, and equipping 32 additional examiners and 5 support personnel, and $1.4 million for non-personnel costs. The FBI planned to increase the number of examiners from 88 to 120 to handle its projected polygraph workload. Congress provided $6.4 million, which included approximately $1.4 million for non-personnel costs and $5 million for hiring 32 additional examiners and 5 additional support staff. The FBI estimated for us that its expenditures for FY 2004 were approximately $8.9 million for Polygraph Unit operations, new examiner training, equipment, and full-time examiner salaries. In FY 2005, the FBI did not request or receive a budget enhancement for its polygraph program. At the beginning of FY 2005, the Polygraph Unit, working with the Security Division Program and Plans Unit, estimated $5.8 million in recurring funding needs and developed an annual spending plan that designated funds for operational and training travel, conference expenses, education, supplies, consulting services, and equipment. During the course of the fiscal year, the Security Division received approximately $3.3 million in various budget cuts for the polygraph program. Consequently, the FBI’s polygraph program had a net authorization of approximately $2.5 million in FY 2005. Quality Control and Oversight The quality control and oversight mechanisms for the FBI’s polygraph program include quality control provided by the FBI’s Polygraph Unit, internal oversight by the FBI’s Inspection Division, and external quality assurance provided by the DoDPI Quality Assurance Program. Each of these efforts is described below. Quality Control The FBI’s Polygraph Unit implements the FBI’s internal quality control review process. According to the Federal Examiner Handbook, each agency within the federal government with a polygraph examination capability must maintain a program and procedures for conducting independent and objective quality control reviews of all polygraph reports, technical documents, and polygraph charts. The reviews are intended to ensure satisfactory quality and the correctness of examiner opinions on the results of polygraphs. Under the FBI’s procedures, all polygraph examination records undergo a supervisory review before final opinions on the results are rendered. For each specific-issue polygraph examination, the field examiner forwards the original and one copy of the polygraph report, test data, and all other related documents to the Regional Polygraph Program Manager for a quality control review. All other polygraph examinations are forwarded to the FBI Polygraph Unit for a quality control review. Following a quality control review, the polygraph materials for a criminal or foreign counterintelligence or counterterrorism polygraph examination are returned to the examiner. Polygraph materials for other matters are forwarded to the proper unit or outside agency for review and storage. The Polygraph Unit’s quality control process consists of a supervisory review of the test data from each examination. The supervisory review must be completed before the examination result is considered final. If the reviewing supervisor disagrees with the examiner’s conclusion, the supervisor may request a second review by another supervisor. In some cases, the Unit Chief may be asked to review the data and provide the final decision. If the reviewing supervisor agrees with the examiner’s initial conclusion, the examination record is returned to the examiner. The DoDPI inspection reports on the FBI’s Polygraph Unit that we reviewed consistently stated that the FBI’s internal quality control process resulted in a thoroughly independent and objective review of all polygraph examinations conducted by FBI examiners. Internal Oversight The FBI Inspection Division provides internal oversight of all FBI divisions through triennial reviews. The Polygraph Unit was last inspected in August 2004 as part of a review of the productivity of each unit in the Security Division. The inspection examined the unit’s administrative management, operations management, and performance. The inspection did not report any management deficiencies and concluded that the Polygraph Unit was effectively and efficiently managed. The inspection did not include any specific assessment of polygraph examiner performance or compliance with federal polygraph standards. External Quality Assurance In January 2006, the FBI polygraph program was certified by DoDPI for the first time since the FBI agreed, in 2002, to allow a limited quality assurance review by the DoDPI Quality Assurance Program. DoDPI conducted four inspections during FY 2002 through 2006. During each of the inspections, DoDPI reviewed 118 criteria in 9 primary areas specified in the Quality Assurance Program, Inspection Manual Standards and Criteria (1999). In the 3 inspections conducted in FY 2002 through 2005, DoDPI inspectors reviewed a total of 318 criminal, specific-issue, and pre-employment polygraph examination records, or approximately 100 records during each inspection. During those years, the FBI allowed DoDPI inspectors to review only records of examinations conducted for criminal investigations and pre-employment screenings. DoDPI was not allowed to review the records of examinations conducted for the WITSEC Program, Personnel Security, Office of Professional Responsibility, or Foreign Counterintelligence and Counterterrorism programs.55 Although limited in scope, the DoDPI inspections resulted in a number of findings and recommendations that, had they been implemented, would have brought the FBI into full compliance with federal standards found in the Federal Examiner Handbook and resulted in DoDPI’s certification of FBI compliance. However, some of the issues DoDPI raised involved repeat findings that were not resolved until January 2006. In DoDPI’s FY 2006 inspection report, the results of a review of 100 polygraph examination records resulted in four recommendations that were resolved within the resolution period. DoDPI then certified the FBI polygraph program for the first time. DoDPI inspection reports for FY 2002 through 2004 noted repeated instances of noncompliance with the federal polygraph standards. For example, DoDPI found that the FBI was using nonstandard techniques and practices during polygraph examinations, and noted that FBI examiners: Used improperly constructed polygraph test questions. DoDPI criticized the FBI for using “sensitive norm” comparison questions, which are a type of irrelevant question that mentions the relevant issue.56 The FBI was also using probable-lie comparison questions that were not clearly separated from the relevant issue.57 Federal standards do not allow for the use of sensitive norm questions, and probable-lie questions are allowed under federal standards only if they are constructed so that they are clearly separated from the relevant issue by time, place, or category. The FBI’s Polygraph Unit Chief told us that in May 2005 he instructed FBI examiners to stop using sensitive norm questions. In response to DoDPI’s concerns over improperly constructed probable-lie questions, the FBI agreed to issue instructions to the field examiners to create a clear dichotomy between relevant and comparison questions. Rarely conducted known-solution acquaintance tests. The Federal Examiner Handbook recommends as a best practice that subjects receive a known-solution acquaintance test before they are given a polygraph examination to familiarize the examinee with the basic concepts of the examination and to demonstrate the reliability of the polygraph. However, DoDPI reported that few subjects were given this type of acquaintance test (2 of 55 in 2002; and 3 of 48 applicant examinations and 24 of 57 specific-issue examinations in 2004). After the 2004 inspection, the FBI agreed to revise its policy to require examiners to conduct appropriate acquaintance tests for subjects that had not previously undergone a polygraph examination. In all other cases, FBI field examiners’ use of the acquaintance test would be discretionary. Nevertheless, FBI polygraph policies still allowed examiners to conduct unknown solution acquaintance tests – a test for which there is no empirical research and that all other federal agencies have discontinued using. Rendered opinions not supported by standard test data analysis techniques. In 2004, DoDPI reported three issues related to the opinions rendered by FBI examiners. DoDPI reported that in 9 of 48 pre-employment polygraph records it reviewed, the FBI field examiners had rendered conclusive opinions that were not in accordance with standard numerical evaluation procedures and cutoff scores. In these cases, the FBI examiners rendered an opinion of No Deception Indicated or Deception Indicated when standard scoring techniques would have resulted in an opinion of Inconclusive. DoDPI also reported that FBI examiners did not always follow federal standards that require them to evaluate all the test results (such as respiration, heart rate, and skin reactions) before rendering an opinion. In six of the nine cases that DoDPI questioned, the FBI examiners had rendered their opinions based on only two components of the test. Finally, DoDPI found that FBI examiners used a “global evaluation technique” in which a subjective conclusion is rendered on the overall polygraph test, rather than by a systematic numerical comparison among questions.58 Destroyed score sheets. In the inspections conducted in FY 2002 through 2004, DoDPI reported that the FBI routinely destroyed the score sheets that examiners and supervisors prepared when examining polygraph test results. Under federal standards, the score sheets are part of the permanent examination record. However, according to the FBI’s polygraph procedures, quality control personnel in the FBI’s Polygraph Unit destroy the score sheets after rendering a final opinion on the test results.59 After DoDPI raised this issue for the third time in 2004, the FBI’s Polygraph Unit responded that the score sheets are meaningless because only the determination of the quality control supervisor at Headquarters is final. The Chief of the FBI Polygraph Unit also asserted that the score sheets could be used to raise questions in court concerning the credibility of the FBI’s polygraph results, especially when there are differences between the field examiner’s scoring and that of the quality control supervisor. According to DoDPI, using nonstandard questions and evaluation techniques may reduce the reliability of polygraph examination results, which has both security and personnel implications. For example, making a determination of No Deception Indicated when standard test scoring techniques should have resulted in an Inconclusive result and a retest has the potential to allow a security risk to pass undetected. Also, law enforcement agencies often ask applicants whether they have previously taken a polygraph and whether they passed or failed. Therefore, making a determination of Deception Indicated when standard test scoring techniques should have resulted in an Inconclusive result could have a significant impact on a subject, particularly if the subject is seeking employment in law enforcement. Although the results of FBI polygraphs are now readily accepted by other federal agencies, DoDPI officials warned that continued failure to adhere to standardized numerical scoring techniques could impact the FBI’s future reciprocity agreements. Because of the continuing unresolved issues, in 2004 DoDPI concluded that the FBI’s internal quality control process did not ensure that its examiners followed federal technical standards in conducting polygraph examinations. According to the DoDPI Quality Assurance Program Chief, subsequent to the March 2003 DoDPI inspection, the FBI Polygraph Unit Chief developed policies for the FBI that almost fully complied with federal standards.60 However, after the January 2004 inspection, FBI polygraph officials advised the DoDPI Quality Assurance Program Chief that they were unable to implement these policies because they lacked adequate quality control staff. In August 2005, DoDPI officials told the OIG team that, even where the FBI had revised its policy to conform to federal standards, the FBI supervisory staff had not implemented the policy. Because the FBI did not revise its operations to address the outstanding issues, DoDPI would not certify that the FBI polygraph program was operating in compliance with federal standards. In FY 2006, DoDPI inspectors reviewed 100 examination records, which for the first time included records of personnel security polygraphs as well as those conducted for criminal, specific-issue investigations, and pre-employment screening. The scope of the FY 2006 DoDPI inspection, completed in December 2005, was still limited because it did not include records of examinations conducted for the WITSEC Program, Office of Professional Responsibility, and Foreign Counterintelligence and Counterterrorism programs.61 DoDPI inspectors told us that the FBI is one of only two federal agencies that exclude any examination records from review.62 FBI officials stated that they did not allow DoDPI to review those records because of the sensitive nature of those elements of the polygraph program. The results of the FY 2006 DoDPI inspection indicated that the FBI was more responsive to DoDPI’s inspection findings than in previous years. The DoDPI report contained a total of four recommendations that the: FBI policy changed to discontinue the use of the unknown-solution acquaintance test. Enforce existing policy and discontinue use of the sensitive norm question in all FBI testing formats. Maintain the original test data analysis score sheets of field examiners and quality control personnel. FBI use movement sensor devices during the conduct of all (polygraph) examinations. According to the DoDPI Quality Assurance Program Chief and the FBI Polygraph Unit Chief, only two recurring issues from previous inspections were still at issue: (1) the continued destruction of score sheets and (2) the continued use of the unknown-solution acquaintance test. In response to DoDPI recommendations to address these issues, the FBI Polygraph Unit Chief reported that the FBI will continue to destroy score sheets and that the FBI’s Polygraph Examiner Manual was revised to partially implement DoDPI’s recommendation to discontinue the use of the unknown-solution acquaintance test.63 In response to DoDPI’s two other recommendations for the FBI polygraph program, the FBI Polygraph Unit Chief reported that all examiners were reminded to stop using “sensitive norm” questions and that the FBI planned to ensure that all examiners use movement sensor devices when conducting polygraph examinations.64 On January 31, 2006, DoDPI certified the FBI’s polygraph for the first time since the FBI agreed to allow DoDPI inspectors to review its polygraph results in 2002. OPM Oversight As noted in the Background section of this report, OPM does not require that organizations whose employees are in the excepted service receive OPM certification of their polygraph programs in order to conduct pre-employment and personnel security polygraphs. Consequently, the FBI’s polygraph program has never been reviewed or certified by OPM. However, we noted that, although FBI employees are in the excepted service, the FBI is polygraphing employees of other agencies who are not in the excepted service. These examinations may be conducted at the request of the employee’s parent agency or because the employee has been assigned to work with the FBI. In some cases, the parent agency also conducts polygraphs and has a polygraph program that is certified by OPM (for example, the DEA). As detailed in the Workload and Program Costs section above, the FBI conducted 1,661 examinations for other agencies from FY 2002 through 2005. In a few cases involving requests by Department components, such as those requested by the Justice Command Center, the examinations were of competitive service employees and required OPM oversight of the FBI’s polygraph program to ensure it was managed in compliance with federal standards. Early in the review, we discussed this issue with the OPM Program Manager, Center for Federal Investigative Services, who said that OPM was unaware that competitive service employees were being examined by the FBI. In 2006, for the first time, OPM required that the FBI provide OPM with copies of its DoDPI quality assurance report and subsequent DoDPI certification letter stating that the FBI polygraph program was compliant with federal polygraph standards. OPM’s requirement occurred after a request by the Justice Command Center for reauthorization to continuing using the results of polygraph examinations for its competitive service employees. The FBI complied with OPM’s requests in May 2006 (see full discussion in Section II, under JCC), and OPM reauthorized JCC to continue using polygraph examinations for FY 2006. Program Performance and Results In accordance with federal polygraph standards, the FBI collects statistical data on its polygraph program operations. The FBI’s Polygraph Unit collects the data using a dedicated database that can extract a wide range of statistical analyses related to the polygraph program. It uses information on the type, purpose, and results of examinations to identify trends, manage its examination workload, monitor the work of individual examiners, develop budget estimates, characterize its productivity, and measure its performance. According to the Deputy Director, DoDPI, the interrogation skills of examiners can be gauged by the confession rate they achieve, but their skill in using the polygraph technique for assessing truthfulness is better judged by how well they follow professional standards of conduct. He also said that the performance of federal polygraph programs is now being assessed to some degree by their achieved rate of conclusive opinions (the percentage of Deception Indicated or No Deception Indicated opinions). As shown in Table 5, the FBI compiles data on the results of all polygraph examinations. We examined the FBI’s data on the outcomes of polygraph examinations from FY 2002 through 2005 and found that FBI examiners issued conclusive opinions (No Deception Indicated or Deception Indicated) in 92.2 percent (34,468) of all examinations (37,336), which is well above the industry standard of 80 percent. For that same time period, the results of 7.8 percent (2,898) of all completed examinations were inconclusive. The FBI also uses the “confession rate” as a measure of its polygraph performance. The confession rate is calculated by dividing the number of times examinees with a final opinion of Deception Indicated ended up making an admission or confession that confirmed the polygraph result. In 2006, the FBI’s Polygraph Unit reported to DoDPI that 61 percent of individuals with final opinions of Deception Indicated made an admission or confession, a rate that is considered high within the polygraph community. Table 5: FBI Polygraph Examination Results FY 2002 through 2005 Examinations Examination Result Use Number No Deception Indicated Deception Indicated Inconclusive No Opinion Total Non Specific-Issue (Screening) Polygraph Examinations Pre-Employment 23,310 67% 24% 8% 1% 100% Personnel Security 4,721 95% 2% 3% 0% 100% Specific-Issue Polygraph Examinations Criminal 6,203 37% 47% 11% 5% 100% CI/CT 1,994 50% 35% 13% 3% 100% Misconduct 128 48% 41% 5% 6% 100% FBI requests 36,356 N/A N/A N/A N/A   Outside agency requests 1,661 78% 18% 3% 2% 100% Total 38,017 N/A N/A N/A N/A N/A Source: FBI Polygraph Unit THE DEA Polygraph Program Background The DEA uses polygraph examinations in criminal and misconduct investigations, pre-employment and personnel security screenings, and screening foreign personnel assigned to investigative units overseas. The DEA began administering specific-issue polygraph examinations in drug and internal integrity (misconduct) investigations in the early 1970s. In 1995, the DEA began requiring applicants for Special Agent positions to pass a polygraph examination as a condition for employment. Also in 1995, the DEA began requiring foreign nationals seeking assignment to Sensitive Investigative Units overseas to pass a polygraph examination as a condition of membership in the unit. In 1996, the DEA extended the polygraph requirement to applicants for DEA intelligence research specialist positions. Mission and Purpose The mission of the DEA Polygraph Support Unit is to provide polygraph support for DEA investigations on a worldwide basis. The unit also provides polygraph assistance to federal, state, foreign, and local law enforcement agencies in anti-drug operations.65 In addition, it provides applicant screening for designated DEA employees and supports the polygraph requirements of the DEA’s Office of Professional Responsibility. Policies and Regulations The DEA’s polygraph program policy is contained in its Office of Investigative Technology’s Technical Operations Manual, Chapter 6, Section 6.5, “Polygraph Program.” Specific DEA policy, for the use of polygraph examinations as a tool for corroborating or disproving allegations of misconduct, is found in the DEA’s Planning and Inspections Manual, Section 8313.5, “Use of the Polygraph Examination.” The DEA’s policy regarding polygraph requirements for members of Sensitive Investigative Units is contained in the Sensitive Investigative Unit Program’s Standard Operating Policies and Procedures.66 The DEA’s Technical Operations Manual provides general information concerning the use of polygraph examinations and requires the administration of all polygraph examinations in a manner consistent with policies and procedures taught at DoDPI and all applicable DEA rules and regulations. Among other things, the Technical Operations Manual describes why the polygraph program was established, its mission, and the purposes for which the polygraph may be used. According to the manual, the DEA must notify the appropriate U.S. Attorney’s Office when a polygraph examination is conducted as part of a DEA investigation. All requests for polygraph examinations are to be made through either the DEA division examiner in one of the field division offices or directly to the Chief of the Polygraph Support Unit. If the Chief approves a request for polygraph examinations, he arranges for an examiner, in coordination with the examiner’s divisional office, to conduct the examination. The Technical Operations Manual also provides policy for examiner selection, training, continuing education, certification, supervision, and performance monitoring. It establishes quality control and assurance policy, and details procedures for reviewing all polygraph examinations and for resolving differences of opinion regarding the results of an examination. The DEA previously maintained a polygraph procedures handbook. However, as of March 2006, the Chief of the Polygraph Unit said that the DEA handbook was no longer in force. Instead, DEA examiners have been instructed to use the Federal Examiner Handbook for procedural and technical guidance. As discussed in the following sections, DEA polygraph policies describe when an individual may refuse to take a polygraph examination and the potential consequences. The DEA policies and procedures also establish the consequences for an individual whose polygraph results indicate deception. The DEA does not retest individuals whose test results indicate deception, but the results of a polygraph examination are just one factor in the overall hiring decision. If the test result is inconclusive, no determination can be made as to the person’s truthfulness. The DEA does not require employees to take a polygraph examination to receive access to sensitive or national security information and does not conduct random or periodic personnel security polygraph examinations of its employees or other personnel working for the DEA.67 Organization and Staffing The DEA’s polygraph program is administered by the DEA’s Operational Support Division. The Deputy Assistant Administrator, Office of Investigative Technology, has overall responsibility for the polygraph program and certifies DEA examiners to conduct polygraph examinations. The Chief of the Communications and Polygraph Support Section is responsible for establishing and implementing the policies and procedures that govern the DEA polygraph program. The Chief of the Polygraph Support Unit reports to the Chief of the Communications and Polygraph Support Section. Polygraph program operations are coordinated by the Polygraph Support Unit. The Polygraph Support Unit is staffed with a Unit Chief and three polygraph coordinators. Polygraph coordinators are senior polygraph examiners (GS-1811-14) who have at least 2 years of experience as a DEA-certified polygraph examiner. The Chief of the Polygraph Support Unit and the polygraph coordinators have authority over all technical issues involving the administration of polygraph examinations. The three polygraph coordinators conduct quality control reviews of all polygraph examination records. Most polygraph examinations are conducted at field offices by 24 GS‑1811‑13 Special Agents who are certified polygraph examiners. The DEA field office polygraph examiners work for the SAC of the office, but function under the technical supervision of the Chief of the Polygraph Support Unit. Special Agents in Charge of the field offices are responsible for logistics and supervision of the Special Agent examiners assigned to their offices (see Chart 3). Chart 3:  DEA Polygraph Program [Image Not Available Electronically] Source:  DEA Operational Support Division Polygraph Examination Uses and Procedures The DEA uses polygraph examinations primarily for pre-employment suitability screening of Special Agent and intelligence research specialist job applicants; investigating misconduct and criminal allegations; and vetting foreign nationals seeking assignment to Sensitive Investigative Units overseas. The policies and processes for conducting polygraph examinations vary with each use. The DEA does not routinely require its employees to take periodic or random personnel security polygraph examinations. Pre-Employment Screening All applicants for Special Agent and Intelligence Research Specialist positions in the DEA must take pre-employment polygraph examinations to be hired.68 Because the DEA hiring process is lengthy, the background investigation may begin prior to the polygraph. The applicants are given non-specific, full-scope examinations that include questions related to national security issues, past drug use, serious criminal activity, and truthfulness on the application form. All test results are reviewed by Polygraph Support Unit personnel who make the final determination on test results. According to the Deputy Assistant Administrator, Office of Investigative Technology, the results of a polygraph are never the sole factor in determining an applicant’s suitability for employment. DEA Test Result Designations The DEA differs slightly from the other components in how it labels pre-employment polygraph test results. Like other components, DEA examiners render conclusions of No Deception Indicated (NDI), Deception Indicated (DI), Inconclusive (INC), and No Opinion (NO). However, for pre-employment polygraph screening only, the DEA uses the terms “No Significant Response” (NSR) and “Significant Response” (SR) instead of NDI and DI. According to DoDPI officials, the alternative terms are synonymous with DI and NDI, but carry a less negative connotation in the law enforcement community. For consistency, in this report we use the decision terms DI and NDI instead of SR and NSR. In addition, DEA examiners use the term “No Test” to indicate that a full test cycle was not completed. This can occur for a number of reasons such as that the examiner determined the examinee was unfit for an examination or the examinee made a pretest admission or confession. When the results of a DEA polygraph examination show no indication of deceptiveness, the DEA proceeds with the background investigation and the hiring process. If a DEA examiner finds indications of deceptiveness and the applicant subsequently makes a disqualifying admission, the DEA stops both the background investigation and the hiring process. The DEA does not retest individuals whose polygraph results indicate deception; however, individuals whose results are inconclusive are retested. The hiring recommendation is based on all factors, including the polygraph results. DEA does not disqualify an applicant solely on the basis of an inconclusive polygraph examination result.69 Criminal Investigations The DEA’s polygraph program was initially established as an investigative tool in criminal cases. Criminal defendants, suspects, or witnesses in an investigation may voluntarily undergo a polygraph examination. According to DEA policy and the Deputy Assistant Administrator, Office of Investigative Technology, a subject or witness in a criminal investigation can refuse to take a polygraph examination, with one exception. The exception is when a defendant consents to undergo a polygraph examination as part of a plea agreement and subsequently reneges. In that case, the refusal may violate the terms of the plea agreement. DEA officials evaluate each case to determine whether it involves an investigative issue that could be aided by a polygraph examination. When a DEA field agent or an Assistant U.S. Attorney identifies a need to polygraph an individual associated with a criminal investigation, the DEA field agent submits a request for an examination to the polygraph examiner assigned to the agent’s field office. The field agent and examiner review the case file for an investigative issue that lends itself to the use of a polygraph examination and, if so, discuss and formulate the questions to be asked during the examination. The examiner reviews the questions with the examiner’s supervisor at the Polygraph Support Unit and obtains authorization from the Polygraph Support Unit before conducting the examination. Once the examination is conducted, a quality control review is completed (described in the Quality Assurance section below), and a final opinion is issued, the examiner forwards a copy of the polygraph report to the requesting DEA agent, who then notifies the Assistant U.S. Attorney assigned to the case. The agent maintains a copy of the polygraph report in the criminal case file. The polygraph subject is then notified of the final results of the examination. If the subject or subject’s attorney requests a copy of the polygraph report, the Assistant U.S. Attorney may provide one. Misconduct Investigations The DEA’s OPR receives allegations of misconduct from DEA employees and from external sources such as law enforcement officials, confidential informants, cooperating witnesses, other governmental agencies, and the public. According to the DEA’s Planning and Inspection Manual, OPR is responsible for deciding whether a polygraph examination will be used as an investigative tool in a misconduct investigation. Specifically, the OPR Assistant Administrator for Planning and Inspection and the OPR Deputy Assistant Administrator may authorize a polygraph examination in an integrity, misconduct, or internal security matter. The DEA policy also states that a polygraph examination should be offered and used as a matter of course for an individual who makes an allegation against a DEA employee. When a DEA OPR investigation is initiated, an OPR Associate Deputy Chief Inspector determines whether the investigation will be conducted by an OPR investigator or delegated to a SAC of a division field office or other office head at DEA Headquarters. Less serious administrative cases, such as those that do not appear to involve a criminal or integrity issue, generally are delegated for investigation. An OPR investigator monitors delegated cases for quality and timeliness. The OPR investigator typically interviews the subject, complainant, witnesses, and other pertinent individuals, and gathers relevant documents and other evidence. The investigator may ask the subject or witnesses in a misconduct investigation to voluntarily consent to undergo a polygraph examination. A request for an employee to take a polygraph examination is made off the record and, if refused, nothing is reflected in the investigative file unless the employee at first agreed, but later reneged. Employees or individuals must voluntarily consent to undergo a polygraph examination. The DEA does not compel its employees to undergo polygraph examinations in misconduct investigations. When an individual agrees to take a polygraph examination, the OPR inspector or case agent submits a request for a polygraph examination to the DEA’s Polygraph Support Unit, and Unit officials assign an examiner to conduct the examination. The examiner reviews the examination questions with Unit officials and the inspector before the examination and obtains authorization from Unit officials to proceed with the examination. Once the polygraph examination is completed, the examiner analyzes the test data and renders a preliminary opinion on the results. A Polygraph Coordinator at the Polygraph Support Unit conducts a quality control review of the examination record, renders a final opinion on the results of the examination, and notifies the examiner of the results via electronic mail. The Polygraph Coordinator or the examiner gives OPR the results of the examinations. OPR forwards the final investigation record, including the results of a polygraph examination, to the DEA’s Board of Professional Conduct. The Board of Professional Conduct reviews investigative and polygraph evidence in reaching a decision on disciplinary or adverse action. The Board weighs all of the evidence gathered during the misconduct investigation (a polygraph examination is only one piece of evidence) and cannot base recommendations solely on polygraph results. The Chairman of the Board of Professional Conduct said that polygraph examination results have not figured prominently in any decision that he has made for proposed action as the result of an integrity investigation. Once all of the evidence has been evaluated, the Board recommends clearing, disciplining, or removing the employee, and a final decision is made by the Deciding Official. Foreign Agent Vetting In the Department’s FY 1997 Appropriations Act, Congress authorized and approved funding for the DEA to create, train, and support Sensitive Investigative Units (SIU), or foreign vetted units, to work in sensitive bilateral investigations in key countries critical to the counter-narcotics objectives of the United States. The personnel selected by their respective countries to participate in the SIU program undergo a strict security screening. The vetting process includes drug testing, medical and psychological screening, and a background investigation. All foreign nationals who volunteer to become members of an SIU do so with the knowledge that the vetting process includes a polygraph examination. The polygraph examination is the final step in the vetting process, and acceptance into an SIU is contingent on the results. A DEA Country Office sends a request for a foreign vetting polygraph examination to the DEA’s Office of Investigative Technology. The request is forwarded to the DEA’s Polygraph Support Unit. The Polygraph Unit sends a team of polygraph examiners to the requesting country to conduct the examination. A Polygraph Coordinator from the Polygraph Support Unit frequently accompanies the examiners to manage the assignment, conduct a quality control review of the examination record, and make a final decision as to the results of the examination. The DEA sends a notification of the official results to the Country Attaché in the DEA Country Office. Foreign candidates for SIU membership whose polygraph examination results indicate deception are not accepted into the unit. Foreign law enforcement officers who pass the vetting process attend a 5-week SIU special training program at the DEA Training Academy in Virginia and, later, in-service training. SIU support personnel, such as accountants, maintenance personnel, and translators, undergo the required background, drug test, and polygraph portion of the vetting process, but do not attend the training. After 24 months in an SIU, members are subject to random polygraph examinations. In general, 25 percent of the SIU members are subjected to random polygraphs each year. To accomplish this, DEA polygraph examiner teams travel to SIU locations and conduct these examinations at the same time. A finding of Deception Indicated results in the expulsion of the SIU member. In cases where mitigating or extenuating circumstances exist, the Country Attaché may request a retest of the SIU member. Along with initial and random polygraphs, members of an SIU are subject to polygraph examinations at any time questions arise concerning the member’s integrity. If a Special Agent Advisor believes that there may be an integrity issue, the Advisor can send a request for a polygraph examination to the Office of Investigative Technology. Examiner Qualifications and Training Candidates for DEA polygraph examiner positions are selected from among the DEA’s career Special Agent workforce. When there is a vacancy for a polygraph examiner, any career Special Agent who meets the DEA’s requirements for the position may be considered. To qualify, an agent must meet minimum federal standards that include being: (1) a U.S. citizen, (2) at least 25 years old, (3) a graduate of an accredited 4‑year college (or equivalent), (4) an experienced investigator with a recognized federal government or other law enforcement agency, (5) of high moral character and sound emotional temperament based on a background investigation, and (6) judged suitable for the position after taking a polygraph examination. Each field division handles its own recruiting, and candidates apply through their division chain of command to Headquarters. The selection is coordinated between the SAC and the Deputy Assistant Administrator, Office of Investigative Technology. The DEA’s examiner candidates must complete basic training and an internship to be certified to conduct polygraph examinations. For training, the DEA requires examiners to complete a basic examiner’s course at DoDPI. After successfully completing their basic training at DoDPI, DEA examiners also must complete an internship under the supervision of a certified senior examiner who is assigned by the Chief of the Polygraph Support Unit. During the internship, the examiner must conduct at least 25 examinations that have been monitored, reviewed, and approved by a certified examiner. Interns must demonstrate to the senior examiner that they have the ability to conduct examinations independently and in accordance with federal standards and DEA policy. On the successful completion of the internship, an examiner receives a written certification of proficiency. Certified examiners are required to conduct at least 25 polygraph examinations per fiscal year to demonstrate continued proficiency in the use of the polygraph technique. They must also complete 80 hours of continuing education every 2 years. As of January 2005, the DEA reported that its Chief of the Polygraph Support Unit had over 16 years of investigative experience including 4 years of polygraph experience. The Unit’s 3 Polygraph Coordinators had an average of 13.5 years of investigative experience and 8 years of polygraph experience.70 The field examiners had an average of 13.5 years of investigative experience and 5 years of polygraph experience. Field examiners conducted an average of 79 examinations each in FY 2004. Workload and Program Costs From FY 2002 through 2005, DEA Office of Investigative Technology records show that DEA examiners conducted a total of 8,307 polygraph examinations. Of the 8,307 polygraph examinations, 52 percent were used for vetting foreign agents, 38.7 percent were used for pre-employment screening, and 8.8 percent were used in criminal investigations (Table 6). Less than one-half of 1 percent of the examinations was used for personnel security screening and misconduct investigations. Table 6: DEA Polygraph Support Unit’s Workload by Use FY 2002 through 2005 Fiscal Year Foreign Vetting Pre-Employment Criminal Investigation Misconduct Investigation Personnel Security Total 2002 995 552 248 5 4 1,804 2003 1,112 947 205 4 2 2,270 2004 987 889 159 8 5 2,048 2005 1,227 830 121 4 3 2,185 Total 4,321 3,218 733 21 14 8,307 Source: DEA Polygraph Support Unit Polygraph Program Costs The DEA does not track or request specific funding through the budget process for the polygraph program. In response to our request for information on the costs of the DEA polygraph program, the DEA provided estimates of polygraph-related expenditures for FY 2002 through 2004 for its Headquarters component only. The figures in Table 7 include only the direct costs (personnel, travel, training and equipment, and polygraph services) for the polygraph program at Headquarters. It does not include the costs of obligated expenditures and overhead costs such as rent and utilities. The DEA could not provide cost estimates for polygraph work done at field offices.71 Table 7: DEA Polygraph Program Headquarters Cost Estimates FY 2000 through 2004 Fiscal Year Personnel Travel Training Equipment Polygraph Services Total 2002 $3,792,752 $120,053 $98,965 $69,540 $24,502 $4,105,812 2003 $3,959,264 $95,107 $97,227 $98,872 $11,262 $4,261,732 2004 $4,132,855 $99,420 $94,336 $74,102 $10,726 $4,411,439 Total $11,884,871 $314,580 $290,528 $242,514 $46,490 $12,778,984 Source: DEA Polygraph Unit Quality Control and Oversight The DEA’s quality control and oversight mechanisms to ensure the integrity of its polygraph program include quality control provided by the DEA’s Polygraph Support Unit and external quality assurance provided by the DoDPI Quality Assurance Program. In addition, the DEA’s polygraph program is also subject to the oversight of OPM. Each of these mechanisms is described below. Quality Control Internal quality control for the DEA polygraph program is provided primarily through technical reviews conducted by the DEA’s Polygraph Support Unit. At the conclusion of each polygraph examination, the DEA field examiner conducts a numerical test data analysis of the polygraph charts and forwards the examination record, including all charts, forms, worksheets, and electronic media to a Polygraph Coordinator in the Polygraph Support Unit. The Polygraph Coordinator reviews the field examiner’s notes and then conducts an independent test data analysis. The Polygraph Coordinator compares his or her analysis of test results with the analysis of the field examiner. If the Polygraph Coordinator disagrees with the field examiner’s original conclusion, another Polygraph Coordinator conducts a second review. If both coordinators disagree with the field examiner’s conclusion, the examination record is returned to the field examiner for correction or retest. If all aspects of the examination are approved, the Polygraph Coordinator sends a confirmation of the results to the field examiner. The final results of all examinations conducted by field examiners are filed at the Polygraph Support Unit, which is located in Lorton, Virginia, and are accessible only to the unit’s personnel. External Quality Assurance The DEA agreed to participate in the DoDPI Quality Assurance Program in 1997. Since then, DoDPI has conducted reviews of the DEA’s polygraph program in FY 2001, 2003, and 2005. DoDPI reviewed a total of 189 polygraph examination files during the 3 inspections. Each DoDPI review encompassed a sample of all DEA pre-employment and specific-issue polygraph examination records and resulted in the following recommendations: The DEA’s first DoDPI inspection in January 2001 resulted in recommendations that the DEA: (1) reconsider its policy of limiting the tenure of polygraph examiners in management positions to 3 years because the policy resulted in a loss of experienced examiners, and (2) stop its examiners from using comparison questions that encompassed relevant issues because the questions did not comply with federal standards. A January 2003 DoDPI review resulted in only one finding, which was that the DEA follow its own policy of requiring that the Chief of the Polygraph Support Unit provide input into the examiner selection process. The inspection revealed that the DEA policy was not being followed in many cases. DoDPI inspectors believed that, by including input from its polygraph experts in the selection process, the DEA could reduce the number of DEA students failing to complete DoDPI basic examiner training (22 percent in FY 1991 through 2002). In comparison, DoDPI had found that federal law enforcement agencies that included expert input in the selection process only had a 1‑percent dropout rate during the same period. In January 2005, DoDPI inspectors found that two DEA examiners had not completed their continuing education requirement of 80 hours every 2 years. Therefore, the DEA was out of compliance with the requirements of the Federal Polygraph Continuing Education Certification Program. DoDPI recommended that the DEA comply with the requirements in all cases. Each of the three DoDPI inspection reports on the DEA polygraph program concluded that the DEA’s internal quality control program met or exceeded federal quality control standards for federal polygraph programs, that the program included an independent and objective review of all examinations, and that the process was free of undue influence. After each inspection, DoDPI certified the DEA program as compliant with DEA policies and procedures as well as with federal standards for polygraph programs. After receiving the DoDPI reports, the DEA implemented corrective action for all but one of DoDPI’s recommendations. The DEA did not change its procedures concerning the tenure of polygraph managers, which was not a compliance issue.72 OPM Oversight Because the DEA uses polygraph examinations for pre-employment screening and personnel security screening for competitive service employees, the DEA polygraph program falls within the purview of OPM’s oversight responsibilities. OPM requires the DEA to apply to OPM each year for re-authorization to continue using polygraph examinations in its pre-employment screening program for Special Agent and Intelligence Research Specialist positions. For the DEA to receive OPM authorization, OPM must first have certified the DEA’s national security mission and approved the DEA’s policy and regulations for conducting pre-employment screening and personnel investigations. In addition, the DEA must meet three requirements stipulated by OPM as follows: The DEA must demonstrate full compliance with polygraph community standards for the use of polygraph examinations, including those contained in the Federal Examiner Handbook. The DEA meets this requirement by citing its most recent DoDPI inspection report and letter of compliance certification. The DEA’s Chief of the Security Office must review proposed denials of employment or security clearances when results of polygraph examinations are inconclusive, and he must review and approve any denials that involve uncorroborated information gleaned from polygraph examinations. The DEA meets this requirement by agreeing to continue its policy of not denying a clearance or employment based on an inconclusive polygraph result. The DEA must schedule and submit to a quality assurance review of the DEA’s polygraph program by DoDPI at least every 2 years and ask DoDPI to forward a copy of the results of these reviews to OPM’s Federal Investigative Services and to the Department’s Security and Emergency Planning Staff. To satisfy this requirement, the DEA informs OPM of the date of its next DoDPI review and agrees to provide the results of the review as required. The DEA has routinely received OPM authorization to continue its use of polygraph examinations for screening DEA employees.73 Program Performance and Results The DEA collects and maintains statistical data on its polygraph program in its Polygraph Information Tracking System. The DEA uses the data to analyze its polygraph program, characterize polygraph productivity, and measure program performance. DoDPI, in February 2005, certified that the DEA’s polygraph program met federal standards for maintaining statistical reports regarding polygraph examination activity. The results of the DEA’s polygraph examinations are shown in Table 8. We examined the data on the outcomes of polygraph examinations from FY 2002 through 2005 and found that DEA examiners reached conclusive opinions (No Deception Indicated/No Significant Response and Deception Indicated/Significant Response) in 91.2 percent (7,154) of all examinations that were completed (7,843), which is well above the standard of 80 percent. For that same period, 8.8 percent (689) resulted in Inconclusive or No Opinion. The remaining 464 polygraph tests were not completed and are not included in the calculation of the DEA’s Conclusive Opinion rate. The DEA does not routinely track its polygraph examiners’ confession and admission rate. Table 8: DEA Polygraph Examination Results, FY 2002 through 2005 Examinations Examination Result (Percentage) Use Number NDI (NSR) DI (SR) INC NO Total Non-Specific Issue (Screening) Polygraph Examinations Pre-Employment 3,218 67.2% 16.6% 12.1% 4.2% 100% Personnel Security 14 85.7% 7.1% 0.0% 7.1% 100% Foreign Vetting 4,321 78.8% 13.9% 4.7% 2.5% 100% Specific-Issue Polygraph Examinations Criminal 733 26.6% 31.2% 12.8% 29.3% 100% Misconduct 21 42.9% 23.8% 9.5% 23.8% 100% DEA total 8,307 N/A N/A N/A N/A N/A Source: DEA Polygraph Support Unit THE ATF POLYGRAPH PROGRAM Background ATF’s mission is to conduct criminal investigations, regulate the firearms and explosives industries, and assist other law enforcement agencies as part of the federal government’s effort to counter terrorism, reduce violent crime, and protect the public. ATF, which was part of the Department of the Treasury until January 24, 2003, began using polygraph examinations as an investigative aid in the resolution of criminal investigations under its jurisdiction in 1978. In September 1998, OPM allowed Treasury to expand its polygraph program to include pre-employment polygraph examinations for applicants for ATF GS-1811 Special Agent positions. On October 27, 2003, OPM granted approval for the transfer of Treasury’s authority for the ATF polygraph program to the Department of Justice. Mission and Purpose ATF’s Polygraph Branch provides technical support for ATF’s law enforcement mission and the applicant screening process. The Polygraph Branch also develops and presents training at the Federal Law Enforcement Training Center; coordinates with other federal, state, and local agencies; and provides intelligence support to Special Agents related to the specific use of the polygraph technique. Policies and Regulations ATF’s policies and regulations regarding the use of polygraph examinations are contained in several ATF orders and an examiners’ handbook.74 ATF’s draft handbook for examiners, Standard Operating Procedures: Polygraph, provides guidelines for the use of polygraph testing. The draft handbook is designed to serve as an examiners’ field reference on recommended procedures and to supplement examiners’ DoDPI training. According to the draft handbook, all polygraph examinees are to be tested with the presumption that they are being truthful. ATF examiners are charged with ensuring that the ATF polygraph program is conducted within the guidelines of the American Polygraph Association’s Code of Ethics and the technical parameters established by DoDPI. Examiners are instructed to use polygraph testing only as an investigative tool and not as a replacement for a proper and thorough investigative effort. The draft handbook provides guidance for scheduling polygraph examinations and establishes a scheduling priority based on the nature and immediacy of the investigation. It also encourages examiners to conduct no more than two examinations in a single day and to provide for the presence of a second examiner in complex cases. Along with the draft handbook, ATF has policy and guidance dealing with specific uses of polygraph examinations in criminal investigations and pre-employment screening. A 1999 order is currently being rewritten, but, according to the SAC of the Polygraph Branch, it still provides applicable ATF policy for the use of polygraph examinations in criminal investigations.75 An August 2005 ATF policy document updated ATF’s policies and procedures for the pre-employment screening and reflects several ATF office name changes that resulted from ATF’s reorganization as a bureau within the Department of Justice.76 As previously discussed, OPM has authorized ATF to administer polygraph examinations only to Special Agent applicants. ATF does not compel its employees to take polygraph examinations or to undergo personnel security polygraph examinations on a routine or random basis. Organization and Staffing ATF’s polygraph program is carried out by the Polygraph Branch, located in the Office of Field Operations, Special Operations Division. The Chief of the Special Operations Division has overall responsibility for ATF’s polygraph program. The SAC of the Polygraph Branch reports to the Chief of the Special Operations Division and is responsible for establishing and implementing policies and procedures for the Polygraph Branch. The ATF Polygraph Branch comprises 16 certified polygraph examiners, including the SAC of the branch, 3 regional team leaders (currently 1 vacancy), and 12 field examiners (currently 1 vacancy). All polygraph examiners are Special Agents. The SAC of the Polygraph Branch coordinates polygraph services at both the ATF Headquarters and Field Division levels. The SAC is responsible for training new examiners, ensuring the proper use of polygraph examinations, serving as technical advisor for field examiners, and monitoring the overall activities of the polygraph program. Three regional team leaders report to the SAC of the Polygraph Branch but are physically located in field offices. Currently, the three team leader positions are located in division field offices in Massachusetts, North Carolina, and Illinois. Each of the team leaders is a lead criminal investigator. The team leaders, while having the same responsibility for conducting polygraph examinations as field examiners, also have additional duties. When requested, they conduct polygraph examinations for ATF’s Office of Professional Responsibility and Security Operations on issues of employee integrity or conduct. They also conduct quality control reviews for and provide technical supervision over field examiners who carry out polygraph examinations in a designated geographical area. The 12 field examiners serve as Special Agent criminal investigators. They are assigned to the Special Operations Division organizationally, but are physically located in 12 of ATF’s 23 division field offices. While most of the field examiners’ time is spent conducting GS-13 level investigations, a portion of their time is spent conducting polygraph examinations as a collateral duty. The SAC of the Polygraph Branch and the team leaders may assign any field examiner to conduct any polygraph examination that falls within ATF’s purview regardless of the issue or the geographical location of the examination. The examiners’ respective Field Division SAC and the SAC of the Polygraph Branch can approve requests for polygraph examinations, but the final decision on whether to conduct a polygraph examination rests with the polygraph examiner. (See Chart 4.) Chart 4:  ATF Polygraph Program [Image Not Available Electronically] Source:  ATF Polygraph Unit Polygraph Examination Uses and Procedures ATF uses polygraph examinations for two primary reasons: specific-issue examinations as a tool in criminal investigations and pre‑employment screening to verify the truthfulness of Special Agent applicants. Before transferring to the Department, ATF’s Polygraph Branch also supported the DEA, USMS, and the U.S. Secret Service by conducting polygraph examinations to vet foreign candidates seeking membership in sensitive investigative units in other countries. ATF has not conducted foreign vetting polygraphs since transferring to the Department in 2003. The SAC of the Polygraph Branch told us that she must approve the use of polygraph examinations in an administrative misconduct investigation, but that the Polygraph Branch had not conducted any examinations for that purpose in the past 3 years. She said that some employees were asked during that time to volunteer for polygraph examinations for administrative investigations, but they had declined without consequences to the employees for their declinations. ATF’s processes for conducting polygraph examinations vary with each distinct use in terms of who requests, authorizes, conducts, analyzes, reviews, and issues the final opinion on examination results. Different results or outcomes of polygraph examinations also trigger specific actions. In the following sections, we discuss each use. Criminal Investigations ATF uses polygraph examinations during criminal investigations to achieve its law enforcement objectives, including: detecting and identifying criminals; verifying information from informants or witnesses to establish or corroborate credibility; and obtaining additional information leading to new evidence or identification of additional suspects, witnesses, or locations. According to ATF Order 3210.7C, ATF Special Agents or an attorney with a U.S. Attorney’s Office can request a polygraph examination in support of a criminal investigation. Such requests must first be reviewed and approved by the local SAC and then authorized by the ATF Division Director. Authorized agents can request polygraph services from the examiner who serves the agent’s geographic area, the SAC of the Polygraph Branch, or the Chief of the Special Operations Division. All such polygraph examinations in criminal investigations are taken voluntarily without repercussions from declining to undergo one, unless the polygraph examination is required as a part of a plea agreement. In that case, refusing to take the examination may invalidate the agreement. Prior to beginning the examination, the examiner must determine whether the proposed test subject is mentally and physically fit to undergo the examination. If the test subject is deemed fit, a Special Agent (usually the examiner) advises the subject of his or her rights and asks the subject to consent, in writing, to take the examination. If the subject does not formally consent, the examination process stops. If the examination goes forward, a Special Agent familiar with the case assists the examiner during the pretest interview, the actual examination, and the post-test interview. All polygraph examinations used in criminal investigations are specific-issue examinations. After the examination, the field examiner sends the examination records to a regional team leader or to the Polygraph Branch at ATF Headquarters for a quality review. The reviewer issues the final opinion on the results of the examination, and the results are then transmitted back to the field examiner. The examiner verbally informs the test subject and the subject’s attorney of the results. Pre-Employment Screening ATF uses pre-employment screening polygraph examinations as a tool to assist in verifying information provided by job candidates and to evaluate applicants’ eligibility for employment. ATF Brief 2123.4 provides guidance on the role of polygraph testing in pre-employment screening, examiner responsibilities, and the consequences of either an admission made during the examination or the discovery of a discrepancy in information previously provided by the examinee. When an applicant receives a tentative job offer and submits an application for a security clearance, ATF’s Human Resources Division or the Chief of the Recruitment and Hiring Center forwards a formal request for a security investigation and a copy of the application materials to the Personnel Security Branch, Security and Emergency Programs Division, Office of Professional Responsibility and Security Operations. The Personnel Security Branch forwards the application materials, background information, and a written polygraph authorization to the SAC of the Polygraph Branch. The applicant’s name is entered into a control log and a polygraph examiner is assigned. The assigned examiner is responsible for scheduling and conducting the examination, obtaining the applicant’s consent to be polygraphed, and advising the applicant of the applicant’s constitutional rights concerning self-incrimination and seeking the advice of counsel. The polygraph examination begins with the pretest interview and documentation of any significant pretest admissions or discrepancies in information previously provided by the applicant that could affect the results of the polygraph examination and prevent the completion of the examination. If significant admissions occur or discrepancies in information previously provided by the applicant are found during the pretest, in-test, or post-test phases, the examiner forwards that information through the SAC of the Polygraph Branch to the Chief of the Special Operations Division. The Chief of the Special Operations Division reviews the results and forwards them through the Office of Professional Responsibility and Security Operations, which sends them on to the Chief of the Recruitment and Hiring Center for disposition. An exception to this process occurs when an applicant’s admission concerns ongoing criminal behavior. If an applicant who is not an ATF employee makes an admission concerning ongoing criminal behavior that warrants prompt attention, the information is forwarded to the local SAC for referral to the appropriate authorities. The polygraph consent form signed by an applicant makes clear that any derogatory information that is developed as a result of the polygraph examination could be disqualifying and lead to disciplinary action, including dismissal from the applicant’s current job. If a Department employee applies for an ATF position and fails the polygraph examination, ATF officials in the Security and Emergency Programs Division reported that, to their knowledge, there is no ATF or Department policy requiring or ensuring that such information is provided to the employing agency in the Department. However, they told us that, if a Department employee failed the national security portion of the polygraph examination, they would probably seek approval to provide the information to the employing agency or office. They could not recall a case in which that happened. If an applicant is an ATF employee who takes a pre-employment polygraph examination in order to change positions within ATF, the information is forwarded to the Office of Professional Responsibility and Security Operations. Admissions of past criminal behavior by an ATF employee are included in the polygraph report and forwarded through the Chief of the Special Operations Division to the Personnel Security Branch in the Office of Professional Responsibility and Security Operations, where the information is evaluated and, if necessary, referred to the appropriate authorities. If an applicant’s pre-employment polygraph examination results in unresolved, significant responses indicative of deception, the applicant may be ineligible for hire. The applicant may also be ineligible if the examiner detects any attempt by the applicant to manipulate the results of the examination. If the examination results in a No Opinion determination because the examiner cannot render a conclusive opinion based on the test charts, the Polygraph Branch will, when appropriate, retest the applicant in an attempt to obtain a conclusive determination. If a conclusive determination cannot be made, the results are documented and sent through the SAC of the Polygraph Branch to the Chief of the Special Operations Division who sends the results on to Office of Professional Responsibility and Security Operations. In accordance with OPM requirements, ATF does not deny employment on the basis of an Inconclusive polygraph examination without a review of the decision by ATF’s Office of Chief Counsel. Foreign Vetting Although ATF has not conducted a polygraph examination for foreign vetting since 2002, when ATF conducted those examinations, they were governed by an agreement with the host country and the requesting agency (the DEA, USMS, or U.S. Secret Service). All the examinations were conducted in the host country, and the requesting agency made arrangements with the host country for authorization to conduct the tests. ATF conducted the polygraph examinations, performed quality control on site, and reported the results to the requesting agency. The examinations were all personnel security screening polygraph examinations. They were used to detect security risks and to assess the suitability of candidates for membership in Sensitive Investigative Units overseas. The requesting agency and the host country decided how the results of those examinations were used. ATF was not involved in deciding how to use the results and tracked only the number of examinations conducted for reporting purposes. Examiner Qualifications and Training The ATF draft examiners’ handbook establishes that a candidate for the position of polygraph examiner must meet the following minimum standards: U.S. citizenship, at least 25 years old, graduate of an accredited 4-year college, at least 2 years of experience as an investigator with a recognized federal or other law enforcement agency, job qualifications at the GS-12 journeyman level, successful background investigation and polygraph examination, make a 5-year commitment to serve as a polygraph examiner, be interviewed by the SAC of the Polygraph Branch, willingness to travel during the required internship period, and willingness to respond to specific polygraph needs and requests from the Chief of the Special Operations Division and the SAC of the Polygraph Branch. Special Agents selected for training must successfully complete DoDPI’s 14-week Polygraph Examiner Training Course and a supervised 6‑month internship as an ATF examiner before they can be certified competent to conduct polygraph examinations. During the internship, trainees must conduct at least 25 polygraph examinations and reach an acceptable level of proficiency and competency in the polygraph technique to be certified. The SAC of the Polygraph Branch certifies the competency of ATF examiners and recommends them for full membership in the American Polygraph Association. To remain certified, ATF examiners are required to meet the requirements of the Federal Polygraph Continuing Education Certification, which is a minimum of 80 hours of creditable education during each consecutive 2-year period in which they are assigned duties as a polygraph examiner. With the exception of the SAC of the Polygraph Branch, each examiner should conduct a minimum of 18 polygraph examinations during each 6 month period. When possible, ATF examiners attend annual conferences sponsored by the American Association of Police Polygraphists or the American Polygraph Association. ATF also encourages its examiners to complete advanced polygraph training. In DoDPI’s June 2004 biennial report on ATF’s polygraph program, DoDPI reported that the SAC of the Polygraph Branch had 20 years of investigative experience and 5 years of polygraph experience. Overall, ATF’s polygraph program team leaders had an average of 25 years of investigative experience and 12 years of polygraph experience. ATF’s field examiners averaged 15 years of investigative experience and 5 years of polygraph experience. Workload and Program Costs From FY 2002 through 2005, ATF reported conducting 2,700 polygraph examinations. Of those, about 50 percent were conducted for pre-employment screening, 47 percent for criminal investigations, and 3 percent for vetting foreign agent candidates. The 82 foreign screening examinations that ATF conducted in FY 2002 were done at the request of the DEA, USMS, and the U.S. Secret Service (Table 9). Table 9: ATF Polygraph Unit Workload by Use FY 2002 through 2005 Fiscal Year Pre- Employment* Criminal Foreign Vetting* Total 2002 266 306 82 654 2003 384 328 0 712 2004 372 338 0 710 2005 316 308 0 624 Total 1,338 1,280 82 2,700 * The number of pre-employment screening and foreign vetting examinations includes the total number of tests and retests. Source: ATF Polygraph Unit From FY 2002 through 2004, ATF spent an average of approximately $2.5 million per year for its polygraph program (Table 10). ATF’s Special Operations Division tracks all polygraph program costs – both Headquarters and field costs. Table 10: ATF Polygraph Program Costs FY 2002 through 2004 Fiscal Year Personnel Travel Training Other Expenses* Total 2002 $2,096,401 $130,026 $102,671 $43,846 $2,372,944 2003 $2,153,296 $170,710 $81,599 $39,929 $2,445,534 2004 $2,272,372 $161,287 $59,309 $56,108 $2,549,076 Total $6,522,069 $462,023 $243,579 $139,883 $7,367,554 * Other Expenses include the costs of shipping, rentals, services, supplies, and equipment. Source: ATF Polygraph Branch Quality Control and Oversight Quality control and oversight mechanisms to ensure the integrity of ATF’s polygraph program include: (1) internal quality control checks of polygraph results by the ATF Polygraph Branch, (2) internal oversight provided by ATF’s Inspections Division, (3) external quality assurance provided by the DoDPI Quality Assurance Program, and (4) external oversight by OPM. Each of these mechanisms is described below. Quality Control The ATF Polygraph Branch conducts a quality control review of each polygraph examination to ensure that ATF examiners conform to accepted polygraph practices prescribed in ATF’s draft examiner’s handbook and as set forth by DoDPI. ATF defines its quality control review as a systematic evaluation, review, and critique of each polygraph examination conducted by ATF examiners. Examination results are not final until the polygraph examination records undergo a quality review and the reviewing official or officials agree with the results of the examination and issue a final opinion on the results. All quality control reviews are conducted by the SAC of the Polygraph Branch, a team leader, or other designated senior examiner. The quality control process for polygraph examinations conducted by one of ATF’s 12 field examiners is slightly different from the quality control process for polygraph examinations conducted by one of the three team leaders. When a field examiner completes a polygraph examination, the test data, including the test charts and all related paperwork, is forwarded to one of the three team leaders for a quality control review. The team leader reviews the entire examination, analyzes test question construction, evaluates the polygraph charts independently, and reviews the overall technical aspects of the examination. The quality review is intended to ensure that the field examiner followed required procedures and that the polygraph charts are compatible with the field examiner’s opinion on the results of the examination. The team leader reviews the polygraph charts first, rather than the report summary, so that his review is objective and unbiased by the information in the summary report. If the team leader agrees with the field examiner’s opinion, the examination package is forwarded to the SAC of the Polygraph Branch, who reviews the examination to determine whether the team leader and the field examiner agreed on the examination results. When there is agreement, the examination is considered complete. If the team leader disagrees with the field examiner’s opinion on the examination, the team leader contacts the examiner to discuss the review and to identify corrective action. If there is still disagreement, the team leader forwards the complete packet to a second team leader for review. If the second team leader agrees with the field examiner, the case is considered complete. If the second team leader agrees with the initial team leader, additional testing is scheduled or the examination report is amended as appropriate. The difference in the quality control process for team leaders is that, when a team leader conducts an examination, the results are forwarded to another team leader for a quality control review. If there is disagreement between the two team leaders, the examination is sent to the SAC of the Polygraph Branch for additional evaluation and a final opinion on the results. The SAC of the Polygraph Branch also annually reviews at least one polygraph examination conducted by each ATF examiner to further ensure compliance with applicable policies and procedures. In DoDPI’s last three reports on the ATF polygraph program, DoDPI has reported that ATF’s quality control program includes an independent and objective review that is free of undue influence from the original examiner or other sources. Internal Oversight ATF management is responsible for ensuring that its various divisions and offices comply with all applicable laws and regulations. To ensure compliance, ATF performs triennial reviews of all of its operations. During the week of December 12 through 15, 2005, ATF’s Office of Professional Responsibility and Security Operations, Inspection Division, conducted an inspection of the Polygraph Branch. The inspection covered the period of October 1, 2004, through September 30, 2005. The Polygraph Branch received an overall rating of “Green” for “Effective and Efficient,” which is the highest rating attainable. External Quality Assurance ATF has participated in the DoDPI Quality Assurance Program since 1997 and underwent its first review on September 30, 1997. DoDPI conducted its last three reviews in September 2000, May 2002, and June 2004. Each of the DoDPI reviews covered 118 criteria in 9 primary areas of ATF’s polygraph program. The next DoDPI review is expected to be conducted in 2006. We reviewed DoDPI’s last two reports on ATF’s polygraph program, and all subsequent findings and recommendations, and we found that ATF had responded to all issues in a timely manner. According to the 2002 report, DoDPI reviewed 73 polygraph examinations (41 pre-employment screenings and 32 specific-issue examinations). DoDPI inspectors made only one recommendation, which stemmed from a finding of improper question construction. DoDPI inspectors found that the probable lie comparison questions used in several applicant screening examinations did not meet federal standards for question construction because they were not clearly separated from the relevant issue. DoDPI recommended that all probable lie comparison questions conform to federal standards. According to the FY 2004 report, DoDPI officials reviewed 70 polygraph examinations (35 pre-employment screening and 35 specific-issue examinations). DoDPI officials made no recommendations regarding the 118 criteria that were reviewed. Subsequent to both reviews, DoDPI issued a letter to ATF stating, “The ATF Polygraph Branch was found to comply with ATF polygraph policies and procedures and its polygraph program and staff met the standards required of a Federal Government polygraph program.”77 OPM Oversight ATF employees are part of the competitive civil service and fall under the purview of OPM. OPM annually reviews and approves ATF’s request to be allowed to continue using pre-employment polygraph examinations as a screening tool for determining the suitability of job applicants for ATF Special Agent positions. OPM has continued to grant ATF annual reauthorization to administer pre-employment screening polygraphs. To continue receiving OPM’s approval, ATF has to re-apply to OPM each year and attest to its continuing policies of: Complying with polygraph standards that are at least as stringent as or more stringent than those found in the Federal Examiner Handbook, Not denying employment or a security clearance based on the results of an Inconclusive polygraph examination without the review and approval of ATF’s Chief Security Officer, Participating in the federal quality assurance review program by undergoing biennial reviews by DoDPI and submitting the results of the reviews to OPM and ATF’s Office of Security. ATF’s last application for OPM approval was September 8, 2005. In its application, ATF asked OPM for a 1-year authorization for the expanded use of polygraph in the screening of competitive and excepted service GS‑1811 criminal investigator, Special Agent applicants, as part of the pre-employment background investigation process. The request was for authorization for the period of October 1, 2005, to September 30, 2006. On April 26, 2006, OPM officials granted ATF authorization to use polygraph examinations for pre-employment and personnel security screening for FY 2006 From February to June 2004, OPM’s Center for Merit System Compliance conducted an appraisal of the ATF personnel security, suitability determination, and investigation programs for compliance with applicable requirements. As part of the appraisal, OPM asked whether ATF used polygraph examinations for security or suitability purposes and whether OPM had approved the agency’s use for competitive service appointment. ATF answered “Yes” to both questions. Further, OPM found that ATF had a strong program that met or exceeded federal requirements.78 Program Performance and Results The ATF Polygraph Branch maintains a database that is used to generate monthly and annual reports on the quantity and quality of polygraph examinations conducted by ATF’s polygraph examiners. ATF uses the data to analyze its polygraph program, characterize polygraph productivity, and measure program performance. In its June 2004 report on the ATF polygraph program, DoDPI found that ATF’s polygraph program database and the statistical reports generated from the database met federal requirements for program statistics. Table 11 shows that during FY 2002 through 2005, ATF’s conclusive rate for criminal, specific-issue polygraphs was 62.7 percent. Its conclusive rate was 81.2 percent for pre-employment screenings and 84.1 percent for foreign vetting polygraph examinations. ATF’s conclusive rate for pre-employment screening and foreign vetting exceeds an industry standard of 80 percent.79 While ATF tracks the number of pre-employment examinations during which the examinee made an admission or confession in the pretest phase, ATF does not track the overall confession rate of its examiners. ATF uses categories for reporting polygraph results that are slightly different from those used by the FBI and DEA. For example, similar to the DEA, ATF uses the terms “No Significant Response” (NSR) and “Significant Response” (SR) when reporting the results of pre‑employment screening and foreign vetting polygraph examinations. ATF also uses a “No Opinion” (NO) to mean that the examiner could not render an opinion based on the physiological data on the charts. ATF’s “NO” is similar in definition to the FBI’s and DEA’s “Inconclusive” result. ATF also uses the term “Administrative Opinion” (AO) to categorize tests that were scheduled but not conducted for a variety of reasons, such as when the test subject refused to go through with the examination or the examiner determined that the test subject was not medically, physically, or mentally fit to undergo the examination. Table 11: ATF Polygraph Examination Results FY 2002 through 2005 Examinations Examination Result (Percentage) Use Number NDI (NSR) DI (SR)* NO AO Total Non-Specific Issue (Screening) Polygraph Examinations Pre-Employment 1,338 72.3% 8.9% 16.0% 2.8% 100% Foreign Vetting 82 76.8% 7.3% 14.6% 1.2% 100% Specific-Issue Polygraph Examinations Criminal 1,280 29.3% 33.4% 15.1% 22.2% 100% Total 2,700 N/A. N/A N/A N/A 100% *Includes pre-test confessions/admissions. Source: ATF Polygraph Branch THE OIG POLYGRAPH PROGRAM Background The OIG investigates alleged violations of criminal and civil laws, and regulations pursuant to the Inspector General Act of 1978 and Attorney General Order 1393-90, dated January 29, 1990. Mission and Purpose The OIG Polygraph Unit is staffed by Special Agents whose primary responsibility is to conduct investigations of suspected criminal and administrative violations affecting Department resources and programs. When requested, the OIG Polygraph Unit also sometimes conducts examinations in support of the BOP, USMS, U.S. Attorneys’ Offices, and other federal agencies. Policies and Regulations The OIG’s Assistant Inspector General (AIG) of Investigations has been delegated responsibility for the formulation and implementation of policy and procedures pertaining to the administration and conduct of polygraph examinations by OIG personnel. OIG polygraph policy is contained in the Inspector General Manual, Volume III, Investigations, Chapter 265, Polygraph Examinations, January 16, 2001, and in the Inspector General Handbook, Investigations Division, Polygraph Examiner Handbook, January 2003. Chapter 265 of the OIG Investigations Manual establishes procedures and guidelines for the use of polygraph examinations as a tool in OIG investigations. The OIG Polygraph Examiner Handbook establishes procedures and guidelines for the conduct of polygraph examinations by polygraph examiners. Its provisions, along with those of Chapter 265 of the Investigations Manual, apply to all polygraph examinations conducted by examiners in the OIG’s Investigations Division. OIG policy states that polygraph examiners are to strictly adhere to all OIG rules, regulations, and established procedures so that they are prepared to defend their competence, procedures, opinions, and standards before all judicial bodies concerning any examination in which they are involved. Individuals polygraphed by the OIG normally are not compelled to take a polygraph examination, and they may refuse to do so without adverse administrative action or a negative inference. An exception occurs when the OIG is conducting an administrative investigation involving FBI employees who, under FBI policy, can be compelled to take a polygraph examination if an administrative investigation concerns a serious violation of the law or FBI policy. The FBI can compel its employees to cooperate with OIG investigations and to take polygraph examinations in certain circumstances (described on pages 43 and 44) or face disciplinary action. Provisions of the OIG Investigations Manual require OIG examiners to use DoDPI question formulation procedures for all authorized polygraph examinations. The manual’s provisions also state that the examiner’s opinion should not be the sole factor in determining the guilt or innocence of the test subject. The OIG’s Polygraph Examiner Handbook addresses the more general aspects of conducting polygraph examinations and includes policy on initiating a polygraph examination, certifying OIG examiners, controlling examination quality, authorization and reporting procedures, and polygraph examination procedures. Organization and Staffing As shown in Chart 5, the SAC of the Special Operations Branch has been designated by the AIG of the Investigations Division to serve as the OIG’s Polygraph Program Manager and Coordinator. The SAC, assigned to OIG Headquarters in Washington, D.C., is responsible for specific oversight of the polygraph program as well as management of its day-to-day operations. All requests, reports, and recommendations relating to polygraph activities are directed to the SAC for action. The SAC is assisted by three Special Agent/Polygraphers. The three Special Agent/Polygraphers, who are GS-1811 Special Agent criminal investigators, may be assigned to participate in criminal investigations as well as to conduct polygraph examinations. The Special Agents maintain an investigative caseload in their assigned field offices and also conduct polygraph examinations as assigned. Chart 5: OIG Polygraph Program Source: OIG Polygraph Unit Polygraph Examination Uses and Procedures The OIG uses specific-issue polygraph examinations in its investigations into allegations of criminal activity or other misconduct by Department employees. The OIG does not require its job applicants to undergo a pre-employment polygraph examination. Further, the OIG does not subject its employees to random or periodic personnel security screening polygraphs as a condition for access to sensitive information or to obtain a security clearance. In addition to its own polygraph activities, the OIG sometimes conducts polygraph examinations for Department components that do not have their own polygraph programs. These examinations are conducted at the request of the other agencies with the approval of the SAC of the Special Operations Branch.80 The SAC of the Special Operations Branch must authorize all OIG-administered polygraph examinations, including those requested by other law enforcement and intelligence agencies. A polygraph examination may be authorized for any offense subject to investigation by the OIG. If there is a conflict between OIG polygraph procedures and those of a requesting agency, the OIG uses its own procedures. Polygraph examinations conducted by the OIG are normally requested by an investigating agent. Prior to making an official request for polygraph assistance, the case agent determines whether a polygraph examination would be useful and whether a proposed test subject would be willing to take a polygraph examination.81 If the case agent is unsure about the feasibility of using a polygraph examination in an investigation, the agent is encouraged to discuss the matter with the SAC of the Special Operations Branch. The case agent is also encouraged to use the polygraph as an investigative tool only when other investigative leads have been exhausted, but the primary issues have not been resolved.82 Requests can be made in writing or by telephone, but all requests must include specific information concerning the proposed test subject (such as age, physical and mental condition, and special requirements) and the investigation (such as the name of the requestor, type of case, and issues needing resolution). The SAC of the Special Operations Branch must approve all polygraph examinations the OIG conducts. Once an examination is scheduled, the case agent is responsible for providing logistical support to the assigned examiner, being available to confer with the examiner concerning the specifics of the case, ensuring the examinee is present at the scheduled time, witnessing the advisement of the examinee’s rights and the signing of the consent form, monitoring the examination when possible, and obtaining a formal statement in the event that the examinee makes a confession or admission during the examination process. When practical, the OIG honors requests made by an examinee’s legal counsel to observe the examination. The examiner is responsible for developing a written report on the results of the examination. The examiner can render one of three preliminary opinions regarding the results of a completed examination: Deception Indicated, No Deception Indicated, or Inconclusive. Multiple series, or retests, may be conducted at the discretion of the examiner to clarify an initial inconclusive opinion.83 If the examiner finds indications of deception, the examiner conducts a post-test interview to attempt to resolve any relevant issues. The examiner develops an examination report for each test and submits it to the SAC of the Special Operations Branch within 5 days of the examination. Each polygraph report and preliminary opinion by the examiner is reviewed by the SAC for quality, and the SAC renders the final opinion on the results of the examination. Polygraph examinations are not complete until the SAC signs the polygraph report. The original polygraph report is sent to the requesting area or field office where the investigation originated for retention in the working and permanent case file. When the OIG conducts a polygraph examination at the request of another component, the original report is sent to the requesting component. A copy of all examination reports is retained in the OIG Investigations Division’s files. Examiner Qualifications and Training The AIG for Investigations is responsible for selecting and training OIG polygraph examiners. Only OIG-certified polygraph examiners conduct OIG-sponsored polygraphs, unless the AIG for Investigations authorizes the use of another federally certified examiner. OIG Special Agents selected to be trained as polygraph examiners are GS-1811 series criminal investigators who must have a minimum of 4 years of criminal investigative experience and pass a mandatory integrity screening polygraph examination. OIG examiner trainees receive basic examiner training at DoDPI and must successfully complete a supervised internship. After examiners complete all required training, they receive a certificate of competence from the Inspector General through the AIG for Investigations. To maintain their certification, examiners must conduct, review for quality, or act as second examiner for a minimum of 12 polygraph examinations per year. Examiners also have to participate in the federal continuing education program by attending at least one polygraph-related training course or by accumulating at least 80 hours of advanced training courses biannually.84 The AIG for Investigations can decertify OIG examiners, which means they can no longer conduct polygraph examinations for the OIG. Examiners can be decertified for repeatedly failing to demonstrate the ability to conduct proper examinations, render accurate opinions, meet reporting requirements, or act in a professional manner consistent with the professional and ethical standards of the OIG. As of January 2006, the SAC of the Special Operations Branch had over 31 years of investigative experience and 22 years of polygraph experience. Workload and Program Costs In FY 2002 through 2005, the OIG Polygraph Unit conducted 173 polygraph examinations. (See Table 12.) The OIG conducted 81 percent (140) of the examinations as part of OIG criminal and misconduct investigations.85 The OIG conducted the other 19 percent (33) in response to requests made by other agencies that included the BOP (17), Criminal Division (5), the WITSEC Program (3), U.S. Attorneys (2), and agencies outside of the Department (6). Table 12: OIG Polygraph Unit Workload FY 2002 through 2005 Fiscal Year Misconduct* 2002 32 2003 52 2004 44 2005 45 Total 173 * The OIG does not compile data for criminal and misconduct investigations separately. Source: OIG Polygraph Unit As shown in Table 13, the OIG spent approximately $559,000 in support of its polygraph program in fiscal years 2002 through 2004. Table 13: OIG Polygraph Unit Budget Costs FY 2002 through 2004 Fiscal Year Polygraphs DoDPI and Other Training Personnel Travel Equipment Total 2002 32 $8,629 $121,162 $14,374 $11,709 $155,874 2003 52 $9,234 $163,194 $23,946 $0 $196,374 2004 44 $9,451 $174,325 $21,852 $1,515 $207,143 Total 128 $27,314 $458,681 $60,172 $13,224 $559,391 Source: OIG Polygraph Unit Quality Control and Oversight The OIG’s polygraph program has two oversight and quality control mechanisms – an internal quality control program conducted by the SAC of the Special Operations Branch and an external quality assurance review by DoDPI. Quality Control Review The SAC of the Special Operations Branch, or a senior examiner who is designated by the SAC, conducts a quality control review of every examination record to ensure that the examination was conducted according to the highest standards of professionalism, accuracy, and reliability. The SAC’s opinion is based on an independent and objective analysis of the test data followed by a review of all other documentation, including the examination report. The SAC can “concur” or “non-concur” with the examiner’s preliminary opinion on the results of the examination. The SAC’s chart analysis, opinion, and other commentary become a permanent part of the examination file. If the SAC concurs with the examiner’s opinion, the examination report is considered complete and the original polygraph report is sent to the controlling field office to be used in the investigation and to become a part of the case file. If the SAC does not agree with the examiner’s opinion, the file is forwarded to the U.S. Secret Service or the FBI for a third and final opinion that is binding. When the SAC conducts a polygraph examination, another senior OIG examiner is designated to conduct a quality control review of the examination record. No examination is considered valid and complete until the quality control review has been completed and the SAC has signed the polygraph report. In its three quality assurance reviews of the OIG Polygraph Unit, DoDPI has consistently found that the OIG’s quality control process is independent, objective, and free of undue influence. DoDPI Quality Assurance Reviews DoDPI provides external oversight of the OIG Polygraph Unit through its biennial quality assurance reviews. In 2000, 2002, and 2004, DoDPI reviewed 112 examination records to determine whether the program was being managed and implemented in compliance with OIG polygraph policies and procedures and the standards established for federal polygraph programs. The examination records were reviewed for compliance with the 118 criteria in 9 primary management and technical areas. A number of recommendations were made in DoDPI’s 2000 review, and all but one were implemented prior to the completion of the review. Consequently, DoDPI’s report on its 2000 review contained one recommendation, which addressed the OIG’s use of a fourth chart, or a fourth round of questioning. Although OIG policy limited the use of a fourth chart, records showed that examiners had used a fourth chart in circumstances that were not supported by OIG policy and federal standards. The DoDPI report recommended that the OIG ensure that a fourth chart was used only when appropriate. In 2002, DoDPI recommended that OIG polygraph examiners adhere to OIG policies pertaining to question formulation and examination test formats. The recommendation stemmed from a DoDPI finding that, in 3 of the 32 examinations, examiners had not followed OIG policies and procedures for test question construction. In 2004, the DoDPI report contained no recommendations because DoDPI inspectors found that the OIG program met or exceeded all the requirements expected of a federal polygraph program. DoDPI reported that, after each of its three reviews of the OIG Polygraph Unit, the OIG responded in a timely and cooperative manner to all DoDPI recommendations and was subsequently certified compliant with federal standards. The most recent certification was on November 9, 2004. Program Performance and Results The OIG maintains a database concerning its use of polygraph examinations. The database includes information on who was polygraphed, whether they were a subject or witness in an investigation, the organization with jurisdiction in the case, and the results of the examination. The SAC of the Special Operations Branch uses the information to manage the OIG’s polygraph program, to characterize and report its workload and productivity, and to meet federal standards for maintaining program statistics. The results of the OIG’s polygraph examinations are shown in Table 14. We examined data on the outcomes of polygraph examinations from FY 2002 through 2005 and found that OIG examiners reached conclusive opinions (e.g., No Deception Indicated or Deception Indicated) in 94 percent (145) of all examinations that were completed (155). This means that OIG examiners had an inconclusive rate of 6 percent. The remaining 18 examinations resulted in a “No Opinion” (NO) because the examiner stopped the examination before collecting enough data to render a conclusive decision or in a “No Examination” because the proposed examinee did not undergo an examination as scheduled. DoDPI reported that during FY 2004 OIG examiners had a confession rate of over 84 percent. Table 14: OIG Polygraph Examination Results FY 2002 through 2005 Examinations Examination Result (Percentage) Use Number No Deception Indicated Deception Indicated Inconclusive No Opinion or No Examination Total Specific-Issue Polygraph Examinations Criminal and Misconduct Investigations 173 49% 35% 6% 10% 100% Source: Special Operations Branch Footnotes As shown in Table 5, on page 55 of this report, the decline in the use of polygraph examinations in operations occurred in their use in criminal investigations not in foreign counterintelligence and counterterrorism. Their use in criminal investigations decreased 43 percent, while their use in foreign counterintelligence and counterterrorism increased by 31 percent from FY 2002 to 2005. The FBI established “detail” assignments to the Security Division from the CIA and NSA. For example, the FBI’s Assistant Director of the Security Division and the Chief of the Personnel Security Adjudication Section are CIA employees on temporary assignment to the FBI. This number is based on the FBI’s staffing level of 30,430 employees as of March 2006, an undetermined number of contractors that may be as high as 3,500, approximately 400 persons outside the FBI requiring initial special access, and 1,518 JTTF members. The FBI’s Security Policy Manual, Section 1.1, Polygraph Program, replaced polygraph policy contained in Part 2 of the FBI’s MIOG. As defined by Executive Order 12968 and related Adjudication Guidelines. Some FBI agents were administered pre-employment polygraph examination examinations in the mid-1980s. The FBI’s requirement for pre-employment polygraph examinations was extended to all prospective applicants in 1994. Department security officials with SEPS told us that SEPS does not have a process for receiving notifications when a Department employee’s polygraph results in an Inconclusive or Deception Indicated. They also told us they were not aware of a requirement for Department agencies such as the FBI, DEA, or ATF to notify SEPS when a Department employee fails or has an inconclusive polygraph. The SEPS official did recall being notified by the FBI in at least one instance in which a Department employee’s polygraph examination raised security issues. Examples of these non-FBI personnel include JTTF members, contractors, and others who are covered by FBI policy and who perform functions requiring access to “sensitive” FBI information, systems, or space in the specified FBI offices and divisions. Coercive influences include extortion, blackmail, and situations where a relative may be held hostage. The Webster Commission report actually recommended restricting the FBI’s use of personnel security polygraphs. Citing the experience of the CIA when it implemented a similar plan, the Webster Commission cautioned the FBI concerning the potential risks to innocent individuals’ careers in terms of delays in assignments and promotions and damage to employee morale. The Commission also cautioned the FBI against an over-reliance on polygraph examinations for personnel security and recommended the FBI “adopt a counterintelligence test in reinvestigations of employees and non-FBI personnel with SCI and special access clearances. This approach focuses on personnel who may pose the greatest risk to national security and minimizes the risk of false positives.” Non-FBI personnel include local law enforcement agency personnel assigned to counterterrorism task forces. The FBI’s Personnel Security Polygraph Program has been expanded to include all Joint Terrorism Task Force officers, contract linguists, and industrial security contractors with SCI access. The Assistant Section Chief of International Terrorism Section I of the Counterterrorism Division said that all counterterrorism investigations are criminal in nature and are based in one of the FBI’s 56 field offices. A counterintelligence or counterterrorism investigation can sometimes involve an FBI employee. The FBI has had approximately 15 espionage cases in the past 10 years that involved FBI employees, including the case of former Special Agent Robert Hanssen and, more recently, analyst Leandro Aragoncillo. These are categorized as personnel security cases and handled by the FBI’s Security Division. See U.S. Attorneys’ Manual, Title 9 – Criminal Division, Chapter 9-13.300 Polygraphs – Department Policy; 9-21.340, Polygraph Examinations for Prisoner-Witness Candidates; and 9-21.600 Prisoner-Witnesses, October 1999. See also the Criminal Resource Manual, at 259 et seq., for a discussion of case law on polygraph examinations. The FBI’s estimated expenditures do not include the costs for facilities build-out, General Services Administration rent, and field office costs for part-time examiners. The FBI’s Personnel Security Adjudication Section Chief said that the Security Division does not have the ability to estimate the costs of the hours that examiners devote to activities other than polygraph examinations. According to DoDPI inspection reports, the FBI requested that polygraph records from these programs not be reviewed because of the sensitive nature of the programs. In FY 2006, the FBI allowed DoDPI inspectors to review the results of personnel security polygraph examinations but, as it had previously, requested that polygraphs conducted for the Witness Security, Office of Professional Responsibility, and Foreign Counterintelligence and Counterterrorism programs not be included as part of the inspection. According to the FBI Polygraph Unit Chief, although sensitive norm questions address the relevant issue, they do not encompass the relevant area for which the examination is being conducted. For example, an FBI examiner inquiring about the use of illegal drugs may ask, “Have you ever been around friends or relatives who have used illegal drugs?” to overcome examinee concerns about their response to a relevant question (i.e., if the examinee used drugs themselves). The examinee may not use drugs, but a member of his or her family may and the fact of the family member’s drug use may cause a “false” reaction to a relevant question about the examinee’s own drug use. The Chief of the DoDPI Quality Assurance Program said that there has been no research to support the use of sensitive norm questions or to determine what effect(s), if any, their use might have on the outcome of the polygraph examination. Probable-lie comparison questions are constructed so that most people who answer “no” will be lying. An example of a probable-lie question would be, “Have you ever stolen anything?” In October 2005, the Chief of the FBI Polygraph Unit told us that the FBI used global scoring in these instances because he believed the use of standard cutoff scores would have resulted in too many Inconclusive results and subsequent retests. He said that global scoring allows the examiner to use his experience and judgment in assessing the test subject’s responses when the scoring is close. He also said that polygraph schools other than DoDPI use different scoring formats and different numerical scales and that examiner experience is important in evaluating physiological indicators of deception. After the FBI is notified that a DoDPI inspection is planned, the FBI retains score sheets for 90 days to enable DoDPI to evaluate examiner and supervisor performance. FBI examiners can keep personal copies of their score sheets, at their discretion. The revised policies would not have resolved the issues involving the removal of score sheets and the use of the known-solution acquaintance test. We also found that DoDPI has never reviewed the records of polygraph examinations the FBI conducted for other components. We were told by FBI and DoDPI officials that logistical problems prevented the FBI from gathering some of those records from the requesting components for inspection. The CIA is the only other agency that restricts DoDPI review of polygraph examination records. The CIA does not allow DoDPI to review its foreign intelligence operations examination records. On January 18, 2006, the Polygraph Unit Chief responded to DoDPI’s recommendations contained in the FBI’s December 2005 quality assurance report that the FBI would not comply with DoDPI’s recommendation to retain the original data analysis score sheets because “we [the FBI] continue to believe that it is not the agency’s best interest to maintain original score sheets.” Regarding the continued use of the unknown-solution acquaintance test, the Polygraph Unit Chief reported to DoDPI that, “In May 2005, the FBI’s Polygraph Examiner Manual was revised to reflect that the examiner should utilize either the known-solution acquaintance test or a blind-stimulation test for those examinations wherein the examinee has not previously taken a polygraph examination. Its use in examinations wherein the examinee has previously undergone an FBI or other agency examination is at the discretion of the examiner.” The FBI did not give a specific reason as to why it would continue to use the unknown solution acquaintance test in some cases. The Chief reported that approximately 70 percent of all FBI examiners were in compliance with DoDPI’s recommendation that movement sensors – which detect physical countermeasures – be used in all polygraph examinations and stated that he anticipated procuring all of the necessary equipment by December 2006. The unit provides polygraph support to the counter-narcotics enforcement agencies of various allied governments. All of these documents are marked “DEA Sensitive.” Although not a primary program purpose, the DEA has conducted 14 personnel security screening polygraphs of examiner trainees before they entered DoDPI because DoDPI requires that trainees pass a screening polygraph as a condition for admission to its basic examiner training program. These are personnel security polygraphs that include counterintelligence-scope questioning. Because each DEA field division office handles its own recruiting of Special Agents, the pre-employment polygraph process for these applicants is initiated by a request from the DEA recruiter in a division office to the division polygraph examiner. The division polygraph examiner then requests authorization from the Polygraph Support Unit staff at DEA Headquarters to conduct the examination. Examination requests for Intelligence Research Specialist candidates are submitted directly to the DEA Polygraph Support Unit by the Intelligence Division at DEA Headquarters. Derogatory information obtained from a pre-employment polygraph examination of a current Department employee (including a DEA employee seeking to move from a position that does not require a polygraph to one that does) is referred to the DEA’s Office of Professional Responsibility (OPR), which determines if the information warrants further action and how it should be disseminated. OPR officials said that they were not aware of any such information ever being referred back to an employing Department agency or to SEPS. DEA policy requires GS-14 Special Agents with 3 years in a polygraph management position to rotate out of the DEA polygraph program. The DEA manages its polygraph program centrally for matters such as training, policy, and quality control. However, most DEA polygraph examiners are assigned to DEA field offices. The majority of polygraph work involves cases and applicants under the field offices’ areas of responsibilities, and DEA officials said they do not capture or centrally track those expenditures under the polygraph program initiative code. Consequently, the costs shown in Table 8 do not reflect field costs such as travel-related expenses or salaries and benefits for field examiners, which are funded and recorded at the field level. In its report, DoDPI noted that DEA policy requires GS-14 Special Agents with 3 years in a management position to leave the DEA polygraph program. DoDPI noted that other federal polygraph programs maintain experienced personnel in order to retain their technical expertise and recommended that the DEA review its policy regarding polygraph program managers. On May 12, 2006, OPM officials granted the DEA authorization to use polygraph examinations for pre-employment and personnel security screening in FY 2006. As of March 2006, ATF’s policies and regulations were under revision. The revisions were required because the documents were written while the agency was still part of Treasury and included some references and office names that were outdated as the result of reorganization in 2005. A proposed substantive change in the ATF polygraph policy, according to ATF officials, involves ATF’s hiring decisions related to “significant responses.” Currently, applicants for ATF positions are told that they will not be hired if there is an unresolved “significant response” during their pre-employment polygraph examination. The draft handbook proposes that applicants be told that they may not be hired if there is an unresolved response. The order being rewritten is ATF Order 3210.7C, Investigative Priorities, Procedures and Techniques, Chapter J, Investigative Resources, Section 122, Polygraph; February 25, 1999. ATF Brief 2123.4, Pre-employment Polygraph Screening Program, August 25, 2005 (expires August 25, 2007 ). The most recent letter from DoDPI attesting to ATF’s compliance with federal standards was dated June 24, 2004. Executive Order 10450, “Security Requirements for Government Employees,” April 27, 1953, grants OPM authority to make these appraisals to determine whether an agency has established and maintained an effective program to insure that employment and retention in employment of any civilian officer or employee is clearly consistent with national security interests. The appraisals involve a review of an agency’s program operations and guidelines, personnel security records, suitability files, adjudication decisions, official personnel folders, and other related documents and records, and interviews with agency managers and employees. ATF reports the results of each series of questions that an examinee undergoes during a pre-employment or foreign vetting screening – not the results of the overall examination as do the FBI and DEA. When calculating ATF’s conclusive rate, we used the total number of series as the basis. From FY 2002 through 2005, the OIG conducted 33 polygraph examinations for other Department components. These polygraphs were conducted for Federal Bureau of Prisons internal affairs investigations and Criminal Division criminal investigations. For cases involving FBI employees, OIG investigators do not take into account whether the subject of the investigation would be willing to take a polygraph examination. On occasion, the OIG will conduct polygraphs on complainants at the start of an investigation. An OIG examiner’s opinion can be rendered based on a minimum of two polygraph test charts – one less than most federal polygraph program standards require. OIG examiners are also required to be members of the American Polygraph Association. Examiners are encouraged to belong to other law enforcement-related professional organizations as well. The OIG does not distinguish between examinations conducted for criminal investigations and those conducted for misconduct investigations. Both criminal and administrative investigations are handled in the same manner. A case may be initiated as a criminal investigation but change to an administrative investigation at some point.