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Written comments on the Department of Energy's proposed rule, Polygraph Examination Regulation.
Submitted to DOE on 9/21/99.
These comments are my personal views; they are not presented on behalf of Sandia National Laboratories or any other entity.
I suggest that if this rule is indeed implemented, that Secretary Richardson fully embrace proposed section 709.4 (b) (3) and issue a written waiver for every single individual who has a current clearance, based upon a full field investigation. This waiver will create a transition period to fully determine the detrimental effect of this rule on morale, recruiting and retention of essential personnel.
On September 7, 1999 a technical briefing was held in Albuquerque, NM to present information on the technical aspects of polygraph examinations which may be administered to employees of Sandia National Laboratories and other DOE contractors. During that briefing information was presented by Dr. Barland of the DOD-Polygraph Institute. Dr. Barland indicated that during fiscal year 1998 over 7300 individuals had consented to being polygraphed. Dr. Barland also stated, rather enthusiastically, that "No one declined to take the polygraph". I submit for the record that if there was not a single dissenting person from a group of more than 7300 individuals, they were not voluntary participants. I suggest that there was/is a strong atmosphere of coercion surrounding polygraph examinations. This observation is reinforced by the fact that DOE's proposed rule states that "DOE may not administer a polygraph examination unless DOE has: ..... Obtained voluntary written consent from the individual." This statement is blatantly contradictory. An individual is not free to give "voluntary consent" while having a financial gun held to their head. To claim that the examinations are voluntary is hypocrisy at best, and extortion at worst.
A counterintelligence officer from DOE HQ also spoke at the same briefing. He indicated that it would be unwise for an individual to "have a chip on their shoulder" when they come in for a polygraph examination. The unspoken insinuation was that if an individual did not cooperate completely, the entire process would become quite painful. One cannot help but to notice the similarities between the remarks made by the counterintelligence officer and a threat of sexual assault. The victim may "cooperate" and the perpetrator may be gentle. Or the victim may resist and be viciously assaulted. This stance by the DOE under the guise of national security is reprehensible. The honor, reputation, and financial well being of thousands of individuals will be threatened by the use of nothing more than a glorified divining apparatus.
Many individuals who live by there own code of honor may be severely averse to brushing the proverbial chip off their shoulder when they have been told, in essence, that they are guilty until proven innocent. This issue is compounded by the fact that this regulation is being promulgated by an administration that is known for its lack of honor, and proven incidences of lying and deception under oath.
The proposed rule violates an individual's rights by prohibiting the presence of legal counsel or oversight by other independent individuals during the examination. The determination of "deception" is made by two or three examiners and/or their superiors (some of whom are sitting behind a one-way mirror) who have an inherent conflict of interest. If they never find a spy, or other incriminating information, what use are they? Make no mistake; their job is to badger an individual until the individual responds with an answer acceptable to the examiner. As I understand it, this badgering and intimidation is in itself suppose to provide a degree of "deterrence" against acts of espionage. The practice of preemptive chastisement may indeed be a deterrent to some, but it may also be a challenge to others. Does DOE have any factual data proving that the potential benefit outweighs the potential damage?
Another issue not fully addressed by the proposed rule deals with the consequences of declining to take a polygraph examination or "failing" one. According to the proposed rule an employee cannot be terminated for declining to take a polygraph exam. But what actions can be taken? Does refusal to submit to a polygraph indicate "probable cause" and open the door to wiretaps and other covert methods of investigation (a polite term for further invasion of the individual's privacy)?
In summary, the proposed rule and the junk-science that it supports are unlikely to have any significant beneficial impact on our nations security. To the contrary, it may well reduce our nation's security by driving away the best, brightest, and most talented personnel from our nations top laboratories. Then again, considering the actions of former DOE Secretary Hazel O'Leary, destroying the nations nuclear capability may be this administrations ultimate goal after all.
Submitted by:
David J. Swahlan
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