December 6, 2012

Truth, lies and polygraphs

About 70,000 people get a federal polygraph each year, but legal challenges are extremely difficult.

By Marisa Taylor, McClatchy Newspapers

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

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U.S. Air Force Staff Sgt. Jason Arnold, 407th Expeditionary Communications Squadron, acts as an examinee for an Office of Special Investigations polygraph examiner.

Staff Sgt. Valerie Smith/U.S. Air Force/MCT

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Michael Pillsbury, seen in his Georgetown home in Washington, D.C., is a China expert who has advised three Republican administrations and held numerous security clearances. But he’s had to battle claims by polygraphers that he made admissions of leaking sensitive information.


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

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

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

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

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

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

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

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

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

That board, the Defense Office of Hearings and Appeals, is mainly set up for contractors and consultants, but even people in those categories often discover they're barred for other reasons.

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

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

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

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