@StateDept Updates Its Polygraph Policy: Are Results Shared For Security Clearance/Assignment Purposes?

Posted: 1:26 am ET
[twitter-follow screen_name=’Diplopundit’ ]

 

On September 1, 2016, the State Department updated its 12 FAM 250 policy on the use of the polygraph to examine Department employees (including employees on the General Schedule, the Foreign Service, on Personal Service Contracts, Limited NonCareer Appointees, and Locally Employed Staff).  

Per 12 FAM 251.2-2, the Office of Investigations and Counterintelligence (DS/DO/ICI) Counterterrorism Vetting Unit (CCV) administers the polygraph program and is responsible for hiring polygraph examiners, responding to requests for polygraph support, deploying polygraph examiners, and maintaining relevant records.

The update includes the following:
  • Streamlines the polygraph examination process by removing a requirement to seek pre-approval before a DS or OIG agent can ask an employee if s/he is willing to submit to a polygraph.
  • Authorizes a DS agent or Department OIG investigator to alert an employee or contractor, currently subject to a criminal, personnel security, or counterintelligence investigation, that s/he has the option to undergo an exculpatory polygraph examination, rather than limiting exculpatory polygraphs to cases where it is initiated by the individual under investigation.
  • Allow polygraphs of Department employees detailed to federal agencies (in addition to the NSA, CIA, and DIA) when the relevant agency requires a polygraph to be detailed to the position. Polygraphs of employees detailed to agencies other than the NSA, CIA, or DIA will be considered on a case-by-case basis and will require approval from the Under Secretary for Management.
  • Limits the scope of polygraph examinations of Department detailees to other federal agencies to counterintelligence topics for all detailees.
  • Formalize existing processes for polygraph examination of certain locally employed staff, in accordance with the approvals specified in the polygraph policy

Back in May 2015, we questioned the use of the CIA’s polygraph exams of State Department employees (see AFSA Elections: What’s Missing This Campaign Season? Fire, Ice and Some Spirited Debates, Please).

Do you know that Department employees who take the CIA’s polygraph examination for detail assignments will have the  results of their polygraph provided to DS and HR for security  clearance and assignment purposes?  A source told us that “In and of itself, it does no  harm if the CIA retains them for its clearance purposes, but it can  have an unanticipated negative impact when indiscriminately released  by the CIA to third parties, like DS and HR, who use them in violation of the CIA’s restrictions to the Department  and assurances to the examinees.”  If this affects only a fraction of the Foreign Service, is that an excuse not to do anything about it, or at a minimum, provide an alert to employees contemplating these detail assignments?

We’ve recently discovered a newly posted grievance case dated March 2010. We don’t know why this is currently on display upfront on fsgb.gov.  In any case, this is related to the subject of polygraph examination.

On June 24, 2009, grievant, a retired Senior Foreign Service Officer, appealed to the FS Grievance Board the State Department’s (Department) denial of his grievance with respect to the use of the results of a polygraph exam he took in 2003 in conjunction with a detail to the Central Intelligence Agency (CIA). Grievant claims the improper handling and use of the results of that exam violated the Department’s own regulations (12 FAM 250) and resulted in his having been denied a Presidential Appointment as a Chief of Mission (Ambassador).  The ROP includes some interesting interrogatories:

#1: Has the Department ever obtained a Department employee’s polygraph examination results from the CIA for a personnel security background investigation based on the employee’s SF-86 signed release? If so, please describe the circumstances under which this would occur.

The Department objected to answering this interrogatory on the grounds that is was overbroad, immaterial, and irrelevant.

IR #6e for Diplomatic Security Case Officer for the second background investigation: Have you ever requested an employee’s polygraph results from the CIA before? If so, under what circumstances‘?

The Department found this interrogatory overbroad, irrelevant, and immaterial.

Ruling on IR #6e: Under the more ample concept of relevance applied at the discovery stage, the Board finds that the information requested is sufficiently relevant to grievant’s claims or likely to lead to the discovery of information relevant to such claims to compel discovery. The information requested may help to clarify the Department’s practice in applying the regulations governing the use of polygraphs that are issue in this case. We do not find the request to impose such a burden on the Department as to outweigh the potential usefulness of the information requested. The Department is directed to respond.

IR # 7h for Diplomatic Security: Does DS routinely request and receive polygraph examination results on all Department employees who have taken polygraph examinations at the CIA as part of their routine background security investigations?

The Department objected to this interrogatory as irrelevant and immaterial in all respects.

The Department was directed to respond to grievant’s Interrogatories 6e and 7h not later than 20 days after receipt of the order but we have been unable to find the decision on this case.

 

On June 24, 2009, grievant filed a grievance appeal, claiming improper use by the Department (Department, agency) of the results of a polygraph examination he had taken in conjunction with a detail from the Department to the Central Intelligence Agency (CIA).  The grievant makes several specific claims:

1) that the CIA provided the results of the polygraph to a Diplomatic Security (DS) agent in the Department, in violation of Department regulations and CIA policy;
2) that the Department requested and/or received the polygraph results from the CIA, in violation of its own regulations;
3) that the Department improperly used the polygraph results in the course of security update investigations; and
4) that the Department improperly provided information drawn from the polygraph to the Director General (DG), which resulted in the DG withdrawing grievant’s nomination to be a chief of mission. The FSGB Board finds that it has jurisdiction over the claims presented by the grievant.

 

#

Advertisements

US Embassy Yemen to Polygraph All Local Employees, Is $4.55M Poly-Money Well Spent?

The Center for Investigative Reporting recently had a piece on the use of polygraphs (Doubts about polygraphs don’t stop federal agencies from using them). Excerpt:

Congress banned polygraphs across most of the private sector 25 years ago because of concern over the test’s reliability. Since then, the federal government, particularly in the areas of national security and law enforcement, has increasingly used the polygraph.
[…]
In a 2003 study, the National Research Council found that polygraphs were better suited for single-incident criminal probes than pre-employment screenings. The reason is that investigative polygraphs are more focused than screening exams.

That 2003 National Research Council study is actually quite interesting.  You can read it here.

On March 29, the antipolygraph.org website posted its translation of a Yemeni news that locally employed staff at the US Embassy in Sana’a are being “forced” to undergo polygraph testing.

 The Arabic-language website Nashwan News reports that the U.S. embassy in Sana’a, Yemen is forcing all locally hired staff to undergo polygraph interrogations, and that any who fail to pass will be terminated. The policy has reportedly had a severely negative effect on employee morale, with some submitting their resignations in protest.

Its translated item of the Yemeni news says in part:

…[A]  source close to the embassy reported that it has notified all local embassy employees without exception of its intention to subject each employee to lie detector (polygraph) testing after implementing it in a limited fashion with respect to some employees.

In an exclusive statement to Nashwan News, the source clarified that the embassy provided no justification for this measure, which has agitated all employees and made them feel that they are the objects of suspicion and doubt on the part of the embassy, in whose service most of them had spent long years without a hint of doubt with regard to any of them.

The embassy employees found no one who would listen to them after the embassy refused to meet with the Local Staff Association there, which resulted in the decision of all of the employees to dissolve the association in protest against the embassy’s refusal to even permit it to meet with embassy employees.

Antipoligraph.org reportedly emailed the embassy, was referred to the State Department and on 1 April 2013 was told by State Department press officer Katherine M. Pfaff that “We do not discuss security  measures taken to ensure the security and safety of our American and Locally Employed Staff at our missions overseas.”

English: Polygraph.

English: Polygraph. (Photo credit: Wikipedia)

The oldest publicly available account of FSNs (also known as LES or locally employed staff) being polygraphed was in Iraq in 2004. There may be earlier cases (did we use the polygraph in Vietnam?), we just could not locate them at this time. Below is part of what OIG Report No.ISP-IQO-05-53 from 2004:

 “Recently instituted polygraph requirements have resulted in the dismissal of about 50 percent of the regional security officer’s local investigators. There is no prospect of recruiting, training, and retaining a sufficient cadre of competent FSNs at this time.”

The use of the polygraph as part of the vetting process for local staff migrated to Kabul in 2010.

Embassy Kabul employed approximately 355 U.S. Government direct-hire FSNs as of March 10, 2010. Shortly before the OIG inspectors visited post, the polygraph reportedly became part of the vetting process:

 “RSO began implementing polygraph examinations as an additional control measure to vet FSNs. According to the regional security officer, a polygraph examination will become part of the vetting process for all newly hired personnel.”

In 2011, US Embassy Kabul also proposed a polygraph procedure to verify threat claims for Special Immigrant Visa (SIV) applicants.  The OIG inspectors at that time recommended that US Embassy Kabul “determine the legality of a policy for the use of polygraphs for employees of both the Department of State and other U.S Government agencies in ascertaining the bona fides of Afghan applicants for special immigrant visas under the Afghan Allies Protection Act of 2009.”

We don’t know if something ever come of it.

Perhaps the 2011 OIG Inspection of Diplomatic Security might provide the most expansive discussion yet of the recent history of the State Department’s polygraph program.

In 2004, given the threat situation in Iraq at the time, Secretary of State Colin Powell authorized DS to conduct polygraph examinations of Iraqi local employees.  From 2004 to 2007, the Department employed one contract polygraph examiner. Over the years, the Department has incrementally increased its polygraph cadre, in response to requests for support from other posts. Initially used exclusively in Iraq to vet local staff, polygraphs now are used in Afghanistan for vetting and have been used on a limited basis for counterintelligence or counterterrorism investigations in Pakistan, Yemen, Tajikistan, Lebanon, Oman, Malta, and the United States. In total, 360 polygraph examinations were conducted in 2009; 984 in 2010; and 1,015 in the first 7 months of 2011. (b) (5). [REDACTED]

At least 95 percent of the examinations are for vetting and counterintelligence or counterterrorism purposes. The remaining 5 percent, with one or two exceptions, are conducted for operational reasons, and for employees who will be detailed to another agency that requires polygraph examinations. Only one or two examinations per year are conducted on American employees for operational reasons. Failure rates for American employees mirror that of other agencies that conduct similar exams,(b) (5) [REDACTED]

The total funding for polygraph examinations is $4.55 million. This includes $2.95 million provided by the Congressional line item for Iraq funding. It also includes $1.6 million provided by the Bureau of South and Central Asian Affairs for polygraph vetting of local staffs in Afghanistan and Pakistan.

According to this, (b)(5) denotes a redaction made because the passage was later disapproved or modified as part of the review process. It is considered predecisional and is protected by the deliberative process privilege under exemption (b)(5) of the Freedom of Information Act.

The OIG report notes that the Department’s polygraph policy, as stated in 12 FAM 251, was written in 1994.

The policy has undergone significant revisions (multiple waivers granted by Secretary Powell, Secretary Rice, and Secretary Clinton for those posts with critical human intelligence threat issues), but the FAM does not reflect those revisions, and it is not clear whether the policy applies to contractors. In 2009, DS proposed a change to the policy to allow broader usage of polygraphs, but the Office of the Legal Adviser’s front office never acted on the suggestion.

The OIG recommended in 2011 that “the Bureau of Diplomatic Security, in coordination with the Office of the Legal Adviser, should review and update the Department’s polygraph examination policy, incorporate the previously proposed changes, and update the Foreign Affairs Manual concerning the use of polygraph examinations. (Action: DS, in coordination with L).”

It does not look like that recommendation was followed. If you read 12 FAM 250, it is as old as Harrison Ford’s 1994 movies.

There are over 500 local employees at the embassy in Sana’a according to numbers cited in the most recent IG report on Yemen.  Our source there confirmed that the embassy is “forcing all employees to take the polygraph, and it caused quite a stir among local staff.”  We’re told that mission staff members acknowledged the Embassy should have rolled out the program better but also points out the “the article mischaracterizes the situation when it states that the Embassy refused to meet with local staff and that the employee association disbanded.”

We don’t know if this security measure is related to AQAP’s bounty on Ambassador Feierstein and military personnel in Yemen.  However, if you’re going to polygraph over 500 employees, it probably is a good idea to have the 1994 FAM updated for obvious reasons.  There is, too, the cross-cultural factor that needs to be addressed.  Or whether the polygraph examiners will use English or Arabic, they will after all be testing non-native English speakers.  DOD, by the way,  has an updated polygraph policy dated 2010.  It not only explains the policy but also details the examination, limitations, and appeals process among other things. It is doubtful that there will be an appeals process for the FSNs and that may be part of the reason why the policy has not been updated since 1994.

Finally, while we are trying to understand why this is being done, we also must ask whether the polygraph program’s total funding of $4.55 million (a 2011 figure) is money well spent.

1.  There was a shooting incident at an annex of U.S. Embassy Kabul on the evening of September 25, 2011.  The lone gunman, described as an Afghan employee, was killed according to US Embassy Kabul.  The embassy’s polygraph program started in 2010. What does it say about the program that it was not able to catch this one before the shooting started?

2.  In March 2011 General Townsend appeared before Congress on the use of Afghan nationals for security in light of the attack on U.S. personnel at FOB Frontenac. When asked about the use of a polygraph, this is what he told our elected representatives:

“Sir, there is a polygraph capability in theater. However, it is rarely used for this type of thing. It is a very complex procedure. We rarely employ it in our own security forces here for particular jobs. It is complex and just hard to do on a large scale. So, I would imagine that polygraph capability could be used in a particular investigation. But we don’t typically use it in screening folks for employment, sir.”

Doesn’t that seem odd?

3. We’d like to see some review and oversight of this process and its effectiveness. While it is true that FSNs are not American citizens, they are employees of the United States Government.  They are often considered the backbone of our overseas mission.  360 polygraph examinations were conducted in 2009. It more than doubled the year after that. In the first seven months of 2011, there were already 1,015 conducted. Its used has incrementally expanded and yet the rules that govern it has stayed the same.  The outdated rules/waiver/whatever that applies to FSNs can easily be used to apply to U.S. direct hire American employees.  The outdated rules need fixing, and somebody (OIG or GAO) needs to take a look if this is worth the effort and the money.

We want to keep our embassy staff safe, but we want to know that the accountable officials have thought this through. We are concerned that this could (given that Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy)  give our American staff in Yemen, Kabul, Iraq or elsewhere a false sense of security.

sig4