Do We Need the Polygraph to Protect Our Borders? | #College. | #Students

Many Americans consider polygraphs the sole determiner for truthfulness, whether they’re used in law enforcement, trial testimony or government hiring practices.

It’s long past time to rethink this assumption. Research and practice suggest lie detector tests  have zero scientific basis, are far too open to individual bias and partial interpretation, and have been sharply questioned by the courts.

This matters for our national security as well as our justice system.  Polygraphs are the gatekeepers for most federal jobs in security sectors, and for the individual subject to them, they can be a humiliating, stressful, and demoralizing experience.

I can speak from experience.

In late 2020, I applied for a position as a Border Patrol Agent with the United States Border Patrol (USBP).  I was confident of being accepted. My circle of family and friends comprises veteran immigration agents and persons with significant law enforcement experience.

Practically all of my volunteer experience has been with law enforcement agencies or public welfare.

I anticipated that a position with Border Patrol would be a stepping stone onto a fantastic career of public service. However, even at the beginning of my process, I was given reason to be cautious about the polygraph.

Upon heading to my “boards” (being interviewed by three Border Patrol agents for suitability) in Texas, I was informed by agents there to explicitly not head to Del Rio, Texas when it came time for the polygraph assessment. According to those agents in charge of hiring new recruits, the polygraph examiner at Del Rio had a 100 percent fail rate.

Despite hearing similar stories from other sources, I was confident. After all, I simply planned to tell the truth.

I took my exam in early March of 2021 in San Antonio, Tx. After an initial discussion about the components of the polygraph machine (which the polygraphist instead preferred to call instruments), we went over the questions that would be asked. They were not the questions you might typically here on police procedural shows. They would be much broader personal ones, and I was instructed not to answer “yes” or “no” verbally; but rather to shake my head in the affirmative or negative

(However, I was warned not to shake my head with too much force as that would disrupt the test.)

Throughout this process, I am sure the examiner could see I was nervous. Not because I had done anything wrong—I’ve never even gotten a traffic ticket. Despite my confidence, I’m just a naturally nervous person, and this was my first time ever taking such an exam.

After my first exam, I was informed by my examiner that my scores were “all over the place.” He said my behavior reflected someone trying to cheat the instruments. He tested me once more. At one point, I apparently moved,  which infuriated the examiner and resulted in my having to start the exam again.

My results were similar to the first assessment.

At this point, the examiner called the people in charge, and said I had shown  “extreme levels” of anxiety on questions involving drug abuse and personal/property crime.

The next roughly two hours were spent with the examiner trying to get me to bring up whatever it was that I had neglected to bring up in the hours before that prevented me from failing on the exam so he could then file a report which would allow me to retest at a later date.

I brought up how I had sent letters asking for challenge coins to various domestic and foreign military and intelligence entities; I brought up how I had felt guilt at a college friend being assaulted and not being there to protect them; I brought up how I had stolen a hat from an airport when I was still in a stroller and how I had taken a fake grape from a Michaels store as a slightly older child (both times in which my parents had chastised me for stealing).

I even brought up how I had once hit my dog too roughly many years prior and felt immense guilt over it at the time and since.

But every time I opened my mouth, the examiner grew angrier, telling me that those admissions were not enough and could not have caused the reactions he had seen “on the machine.”

He listed every agency I had sent coins to (except for the more numerous domestic ones, stating “I don’t care about those”) and continually pressed me for information and strongly encouraged and pressed that I admit something, anything, of a more serious, felonious nature.

Eventually, continuing to be adamant that I had been truthful and had no more information to provide (especially none of a drug or property/person crime), the examiner practically gave up and proceeded to read off all of the items I had admitted to before escorting me from the office.

After over six hours of examination, I left the office in failure and was later informed I could not apply for a position with CBP for the next two years.

Credibility vs. Science

The scientific legitimacy of polygraphs has been questioned by the scientific community since at least the 1970s. At this time, very little research was being done upon the accuracy of polygraphs or the correlation of lying with stress and physiological responses.

In advance of a proposed law on polygraph usage under President Ronald Reagan, the U.S. Congress’ Office of Technology Assessment released a technical memorandum in late 1983 titled Scientific Validity of Polygraph Testing: A Research Review and Evaluation which found “…that no overall measure or single statistic of polygraph validity can be established based on available scientific evidence” finding in total that, for criminal investigations and employment purposes, the polygraph has extreme error rates and was scientifically invalid.

In December of 1988, Congress passed the Employment Polygraph Protection Act (EPPA) which “prohibited the use of all relevant mechanical or electrical devices, including polygraph, deceptograph, voice stress analyzer, or psychological stress evaluator…The law prohibits the use of the polygraph results as the sole basis of an adverse employment decision and restrains the employer from disclosing the information obtained in most cases.”

From a legal perspective, since the 1930s, the courts have found polygraphs to be invalid for usage in prosecutions and legal cases. In 1998, however, the U.S. Supreme Court ruled on polygraphs, stating “that state and federal governments may ban the use of polygraph evidence in court” with three justices then on the bench  (Justice Antonino Scalia, Chief Justice William Rehnquist, Justice Clarence Thomas) desiring “to discourage states from ever allowing their use in court.”

Justice Thomas further opined “There is simply no consensus that polygraph evidence is reliable.”

This case outlawed the use of polygraphs in military courts, yet allowed local and state judges the determination about polygraphs in court cases. For the most part, polygraphs are inadmissible as evidence in a courtroom.

In 1997, the bipartisan, statutory Commission on Protecting and Reducing Government Secrecy, also known as the Moynihan Commission, wrote in their final report on polygraphs, that “although the polygraph is useful in eliciting admissions, the potential also exists for excessive reliance on the examination itself. A related concern is that too much trust is placed in polygraph examiners’ skills, creating a false sense of security within agencies that rely on the polygraph.”

The report continued: “The few Government-sponsored scientific research reports on polygraph validity (as opposed to its utility), especially those focusing on the screening of applicants for employment, indicate that the polygraph is neither scientifically valid nor especially effective beyond its ability to generate admissions (some of which may not even be relevant based on current adjudicative criteria).”

The authors recommended that a Department of Defense (DoD) committee be formed to further research the polygraph and that additional “independent, objective, and peer-reviewed scientific research” was desperately needed.

In the 21st century, the academic research and study of polygraphs became more widespread.

In 2003, the National Academy of Sciences (NAS, a non-governmental and non-profit organization) released a 416-page report titled The Polygraph and Lie Detection which concluded saying;

Overall, the evidence [for scientific evidence on the polygraph with the goal of assessing its validity for security purposes] is scanty and scientifically weak…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. The physiological responses measured by the polygraph are not uniquely related to deception…The research on polygraph accuracy fails in important ways to reflect critical aspects of field polygraph testing, even for specific-incident investigation…

In 2005, the American Psychological Association (APA), the largest professional and scientific psychological body in the United States, stated officially;

There is no evidence that any pattern of physiological reactions is unique to deception. An honest person may be nervous when answering truthfully and a dishonest person may be non-anxious…Most psychologists and other scientists agree that there is little basis for the validity of polygraph tests…although the idea of a lie detector may be comforting, the most practical advice is to remain skeptical about any conclusion wrung from a polygraph.

Despite all this, the polygraph remains in use by the entire U.S. Intelligence Community and various members of local, state and federal law enforcement agencies.

The conclusions above leave one important impact out: the effect on the individual who takes the polygraph test.

Having spent a year working on my application, I was crushed. I felt I had let both my own family and my significant other’s family down. I was further concerned as to how this exam would be seen by other agencies or by the public as a whole, if they would find me to be a liar or a fraud.

Even today, when I tell people that I did not pass the polygraph, I find them looking at me differently.

My experience left me to question everything. Having acted morally upright my entire life and held myself to a high ethical standard in everything I have done, to have my truthfulness doubted, was a breaking thing.

Customs and Border Protection Joins  the Crowd

 The usage of polygraphs by the U.S. Border Patrol is quite new.

According to the official CBP website, “Polygraph screening has been part of CBP’s vetting process since 2008; but in 2010, Congress passed the Anti-Border Corruption Act requiring the agency to use the polygraph to vet all law enforcement applicants.”

It was also at this time that a significant push was being made by CBP and the U.S. Department of Homeland Security (DHS, the federal department that oversees CBP) to hire more agents, given the desire for more manpower in a post-9/11 world. This in turn resulted in a “pressure to meet hiring goals” which in turn “allowed less qualified applicants onto the force”.

When President  Donald Trump announced he wanted to hire “5,000 new Border Patrol agents,” this resulted again in a surge of hiring to the CBP and Border Patrol. While the results have been similar, there has been one stark difference, mainly in the area of polygraphs.

In 2017, Elliott Spagat of the Associated Press reported that two out of three applicants to the CBP fail the CBP test. That’s roughly 67 percent  of all applicants failing at the polygraph stage.

Comparatively, the U.S. Secret Service (USSS) and Federal Bureau of Investigation (FBI) had polygraph failure rates of 35 percent and 40 percent respectively. The Drug Enforcement Administration (DEA) recorded polygraph failure rates around 36 percent.

Furthermore,  when the AP asked law enforcement agencies across the country for two years of lie-detector data for job applicants, including police departments in the nation’s 10 largest cities and in major towns along the Mexican border, it received replies from the eight, showing an average failure rate of 28 percent.

Doing Their Job?

Former CBP Commissioner Gil Kerlikowske is among those who have argued that these failure rates are actually indicative of CBP doing very well in vetting their applicants. In an interview with the Commissioner, Spagat reported hat Kerlikowske “didn’t see the number as a negative [to him] it meant the agency was applying tough standards to find its officers.”

The amount of time CBP spends on their polygraph exams too is concerning.

I myself spent somewhere in the realm of six hours being polygraphed; at my boards panel and during the scheduling process, I was informed to expect anywhere from two to eight hours. Others have spent two days going through the polygraph process.

For his article, Spagat interviewed Capt. Alan Hamilton of the Los Angeles Police Department’s (LAPD) recruitment and employment division, who said of these enlongated exams, “If there’s an exam that lasts four to eight hours, your polygrapher is either incompetent or a fool or both” while stating his own department’s exams last around 90 minutes.

The editor-in-chief of the American Polygraph Association, Mark Handler, also acknowledged that the longer polygraph assessments occur, the more susceptible they are to getting inaccurate readings.

If the average failure rate for various other state, local, and federal law enforcement agencies in the United States is somewhere around the 30 percent-40 percent range (which is a figure given by Handler), then I would expect CBP to also be in that range.

If CBP is truly attracting applicants who are less desirable than other agencies, then there would naturally be a higher rate of failure. However, it is hard to imagine that rate of failure is 27 percent (or more) over the national average.

The vast majority of persons who apply to border security agencies (and fail the polygraph) are upstanding citizens. They are police officers from large and small agencies throughout the United States. They are veterans who have been honorably discharged.They are the sons and daughters of Border Patrol Agents and other law enforcement officers.

One of the persons interviewed by Spagat was David Kirk, an honorably discharged Major of the United States Marine Corps who had flown in the Presidential Helicopter Squadron.

During his eight-hour long polygraph with CBP, Kirk was denied clearance and “was accused of cheating on his wife and mishandling classified information and was told he acted like a drug trafficker trying to infiltrate the agency.”

Having been through the same process and also highly valuing my integrity and honesty, I share much of Kirk’s sentiments about this process.

Notwithstanding the scientific inaccuracies of polygraphs, notwithstanding the inabilities of the polygraph from a counterintelligence or employment standpoint, there appears to be a pretty serious problem with CBP and the way they utilize this device.

Furthermore, it seems that CBP does not necessarily desire to change this system.

While the agency has explored refining the test in April of 2018, in July of 2018, CBP’s Office of the Inspector General (OIG) “determined that 96 percent of the complaints we reviewed were unfounded or ambiguous.”

What is interesting about this percentage of complaints, however, is that CBP admitted they lacked the capabilities necessary to adequately review these complaints.

They write, “CBP did not have a formal complaint review process, which led to inconsistent and subjective reviews. This approach risks not finding or properly addressing issues contained in the complaints…The extent of CBP’s review depended largely on factors such as whether the allegation would affect the outcome of the exam, if the applicant admitted to wrongdoing, or the applicant failed the exam.”

It seems rather odd that CBP would so definitively say that a high percentage of these complaints were unfounded or ambiguous while also admitting their process for tracking these complaints and reviewing them is apparently so poor.

It is apparent to me that CBP needs to drastically rework how it conducts polygraphs and how it reviews, stores, and assesses complaints or accusations of impropriety. With the potential for a new CBP commissioner, it is possible the U.S. could see a change in CBP polygraph policy in the coming future.

On a larger scale, within the whole federal law enforcement and intelligence community, the credibility and scientific veracity of polygraphs must be assessed.

The question we should all be asking: Do these devices truly assist in making a stronger national security workforce?

Alan Cunningham is a graduate of Norwich University and the University of Texas at Austin. He plans to join the U.S. Navy as an Officer in 2022 and has been published on various other national security and military websites. He can be reached at @CadetCunningham.

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