Interview transcript: 

Terry Gerton There’s been a lot of controversy around polygraphs in government over the past few months. So let’s start with some of the basics. Why do agencies like CISA and DoD continue to rely on polygraphs for certain positions?

Dan Meyer So that’s a great starting point. The first thing we have to recognize is that polygraph technology is so questionable that it’s generally not admissible in courts. So as evidence, it’s pretty thin, and that’s been a generational trend. It used to be accepted far more back in the 1930s and 40s than it is now. So we use polygraphs in the United States for counterintelligence. That’s what it’s for, reliability of the workforce. We want to be able to test and employ statements, various questions against some empirical basis of truth. The challenge with the polygraph is that it measures not truth, but physiology. It measures the way the body reacts. And science, over the years, has started to show that women and men, for instance, don’t react the same. They don’t have the same physiology. That’s why we have to do different types of medical research now, because women were traditionally ignored, because we always thought that men were the baseline, and everybody would be the same as men. Well, that turned out not to be true. The same situation exists with polygraphs, and there can be differences across the board which polygraphers can never accept, and they can’t accept because that starts to undermine their position within the professional community. So that’s the challenge, is that it measures physiology and not actual truth or veracity of the individual. At some point we’ll be out of this problem because we’ll have a tool that’s better than the polygraph and I do think that artificial intelligence will create it, but we in the United States use the polygraph to catch spies, other countries don’t. And that’s our only tool we really have. We’re not good at actually doing assessment of human potential from other types of analysis. So we’re stuck with it. It’s the only tool that we’ve got and it’s the one we use. And if you’re in the intelligence community or if you are in law enforcement, the chances are you’re going to be under a polygraph at some point in your career, if not your entire career.

Terry Gerton There was a recent controversy around the acting CISA director’s failure of a polygraph test. Can you fill us in a little bit on what went on there?

Dan Meyer I’m not privvy to the exact details of his particular case, but the alarming part of that is it was CISA. CISA is the heart of our cyber defense, and for much of the Biden administration, it was under very, very close scrutiny from a variety of congressional oversight authorities. Senator Grassley, at one point, was doing an inquiry. So there was concerns that CISA was being used politically. So on top of that concerns, the Trump administration came in with a commitment to reform it. And then you have this problem. And the problem seems to have developed around two questions. One is, did the individual fail a polygraph? You really don’t fail a polygraph, either there’s a detection or a non-detection. It’s really not like a test you can fail. But clearly did not pass, to use the vernacular, according to the reports. And then there’s the open question about whether that individual should have been under a polygraph, and there’s this allegation out there in the press that somehow he was set up. And so those are the two concerns there. The second one is kind of unique in that polygraphs are given based on the position and what’s called the criticality of the position. So it’s really about the classification of one’s job that determines whether you get a polygraph. So there really should be no question as to whether a person should have a polygraph or not have a polygraph, so if there was an open question, that should have been elevated to the appropriate authority to decide that. My understanding is that’s the DNI, is the DNI is in charge of reliability issues, security clearance issues across the board for the president in her capacity as the DNI, but not as the spymaster in the United States. It’s a collateral duty. That should have been resolved and it should not be at the point now where employees are being accused and somebody who’s now being seen as a victim of a wrongful polygraph process, that’s ugly. We should have never gotten to that point. That should have been raised and clarified before the polygraph went forward. The second use goes back to my original comment about physiology. People can fail polygraphs for a variety of reasons. There’s the famous guilt-grabber complex, which is that an individual is very at attention in their thoughts, very self-reflective, very self-aware. People who are that way about events in their lives may start to have feelings of guilt. Feelings of guilt can trigger physiology. And sometimes your feeling of guilt that you didn’t feed the cat on time this morning can bleed over into a question that when you were asked whether you committed an act of terrorism against the United States. Well, let’s put it this way. If you’re a sociopath, the chances are you’re going to pass a polygraph because the way you’re constructed in your behavioral mental health diagnosis is ideally suited to not triggering the physiology cues that exist for the polygraph. But if you’re a deeply religious person or spiritual person, it’s in the community, this is known as the Jewish and Catholic issue. People who are Jewish and Catholic all had a Jewish or a Catholic mother. You were taught to always think you were doing something wrong. I’m laughing because I was raised by a Catholic mother, and so I was always looking at my behavior and always questioning my behavior. That can be a disaster on a polygraph.

Terry Gerton I’m speaking with Dan Meyer, he’s an equity partner at Tully Rinckey. With all of the challenges with the polygraph that you’ve just articulated for us, if an employee or a contractor is facing one for their position, what are the best practices to prepare and protect themselves?

Dan Meyer Okay, so on the big picture, let’s talk about from the administration perspective. We ought not to have separate rules for separate people about polygraphs, we’ve got to stick with the structure. If the position requires it, it has to be performed. There should not be special exceptions. I know you always want to have special exceptions, but that’s a bad idea. For the individual, the first thing you do is do not watch videos and do not study the polygraph because you are going to be asked questions that ask you if you did that, and then you’re going to be in the awkward situation of trying to explain whether you adopted countermeasures to make it look like you’re telling the truth when you’re not telling the truth. Do not try to game the polygraph because if the polygraph has trouble figuring out truth or falsity, it does not have trouble figuring it out whether you’re gaming it, and that’s a huge reason why people fail polygraphs. It’s good to retain a law firm to get advice on your security profile to help you understand where your liabilities are and how to accurately report them. The whole key to the security paradigm is you’ve got to be comfortable with the way you resolve the issues in your life so that when you talk to security officials and you talk about those issues, you’re open and candid and there’s a complete and transparent flow of information between those people about that situation. Then you won’t fail the polygraph, then you’re going to do fine on your security review. The challenge we have in American culture at this point in time is everybody thinks you have to withhold information to game the process. Game the process in our commercial lives as consumers, game the process in our private lives as family members. This is an evil that has drifted into American culture, and it really is harmful on the polygraph. So you’ve got to think through about whether you’re open and honest about your life, and you’ve got to incorporate that principle into your job application.

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Interview transcript:

Terry Gerton You’ve done an interesting report recently. You revealed that senior officials at the FBI were granted waivers for polygraph exams. Let’s start at the beginning. Really, is this normal? And if it’s not, what is normal?

William Turton It’s not normal. You know, the people we spoke to who’ve worked at the highest levels of the FBI have told us that to grant waivers for people like the deputy director, Dan Bongino, the congressional liaison, Marshall Yates and the executive assistant to the director Kash Patel — a woman named Nicole Rucker — granting them polygraph waivers is unprecedented. We spoke to one person who said that they can only recall one waiver being granted, to an outside expert, and that was the only one they knew of in about a seven-year period.

Terry Gerton Are senior leaders at the FBI normally required to pass a polygraph exam?

William Turton All FBI employees are required to pass a polygraph exam. And that’s been the case since 1994. So just to become an FBI employee, you must pass a polygraph. And then as you gain more clearances or access to more sensitive information, some employees have to pass multiple polygraphs.

Terry Gerton And what does a waiver, then, of the polygraph signify?

William Turton We would love to know more about why they were granted waivers. When you take a polygraph at the bureau, based on the people that we spoke to, you get asked all sorts of questions ranging from illegal drug use to foreign contacts. Anything in the spectrum there can potentially cause issues with your employment. We didn’t report any details as to why these people were granted waivers, but we’d love to know more.

Terry Gerton So who has the authority then to grant the waiver?

William Turton We reported that Kath Patel, the director of the FBI, granted the waivers to all three of the employees that I mentioned earlier.

Terry Gerton Is there any requirement to give a justification for that, or was there any transparency around why those waivers were provided?

William Turton The Bureau didn’t disclose that the waivers were granted. The only reason we know that is because we spoke to sources with knowledge and we ended up reporting it. But there was no sort of disclosure or justification from the Bureau as to why the waivers were granted. When we went to the Bureau for comment, one of the things that they told us was that, well, these employees are Schedule C political appointees, so therefore they don’t have to take a polygraph. We spoke to four experts who specialize in security clearances and polygraphs who told us that’s not true. Being a Schedule C or political appointee doesn’t preclude you from having to take a polygraph. And for the record, I went and checked the Plum Book; only one of the three employees that I previously mentioned, Nicole Rucker, is listed as a political appointee.

Terry Gerton One of the reasons that you might expect an FBI official to take a polygraph is to make sure there isn’t any compromising information in their background. But one of the other reasons is to secure that top secret clearance. What kind of information might these folks be exposed to and what is the impact of not having a clear polygraph test and clearance?

William Turton As we reported in this story, the deputy director of the FBI receives some of the most closely guarded secrets that the American government has to offer. People have told us that the deputy director would routinely receive the president’s daily brief, which is a summary from all across the intelligence community of some of the most pressing threats to the country. They also get access to SCI, or special compartmented information, where people are read in and read out of various programs, where a very small amount of people have knowledge of that program. There’s also secure spaces within FBI headquarters. For example, on the seventh floor where the director of the FBI works, the entire director’s suite is what’s known as a SCIF, or secure compartmented information facility, meaning it’s designed to protect against electronic eavesdropping, you can’t bring personal devices inside and you need clearance that is granted, in part, by passing your polygraph to access those spaces.

Terry Gerton I’m speaking with William Turton. He’s an investigative reporter with ProPublica. So what does all of this mean in terms of national security and public trust, if these folks don’t have the proper clearances or haven’t been properly vetted and have access to these important secret information?

William Turton I think one of the most immediate impacts that this has could be on the morale of other FBI employees. It’s important to note that Mr. Patel, the director of the FBI, has used the polygraph on his own workforce in order to see if negative comments have been made about him personally or if there have been leaks to the media. And so I think it presents a sort of immediate double standard that hasn’t really been explained by the Bureau, where top officials close to Patel don’t have to take a polygraph; at the same time Patel will use the polygraph to try and ferret out leaks or negative comments about his leadership.

Terry Gerton What’s happening in terms of oversight here? Has the Department of Justice said anything or the congressional oversight committees?

William Turton  Sen. Durbin, who is the ranking member of the Senate Judiciary Committee, which is the main congressional oversight body of the FBI, raised this issue before Kash Patel when he testified before Congress. This actually happened before our story published, but Durbin mentioned senior members of Patel’s staff, and didn’t at that time explicitly name the deputy director. So this is on Congress’s radar, and when Kash Patel was asked about this, he didn’t engage in the question directly and deflected.

Terry Gerton So this feels a little bit like a tree falling in the forest. If no one is there to hear it, does it make a sound? Is this really a big deal? And if it is, what is going to happen in terms of broader implications, policy changes or even maybe a shakeup?

William Turton The former senior FBI officials and other government officials we spoke to thought it was a big deal. They thought it was a reflection of the fact that the FBI is being run by people who wouldn’t be able to, in their view, pass the minimum requirements to become an agent, much less the deputy director. So I think there’s a question of security, absolutely, people are concerned about. There’s a question about keeping information confidential and secure. And then there’s open questions about the motivations of the people running the Bureau. Officials that we spoke to wondered whether this was an example of prioritizing personal loyalty to the Trump administration and the director, rather than the kind of policies and procedures that are typically in place for FBI employees.

Terry Gerton Have you heard anything from Sen. Durbin or his staff or the committees about moving forward with additional hearings or additional oversight or possibly even future reforms of this process?

William Turton We haven’t, really. I think the story got lost in the news a little bit. There’s been a lot of news about the Bureau of late. I’m keeping my ears open; I think there’s a lot more to this story. And I have a feeling that it’s just scratching the surface.

Terry Gerton If it is eventually to generate some kind of reform, what do you think would be most likely? Would it be tightening clearance rules or codifying the polygraph requirements, as an example?

William Turton I’m not sure what avenues for reform there are, because as I understand it, the director and the president basically have unilateral authority to grant waivers for polygraphs or to grant, in some cases, clearances. So I think I don’t think anyone is eager to change that level of authority that rests with the president or the director of the FBI.

Terry Gerton Do you see any parallels between how the FBI has approached the polygraph and maybe what’s happening in the Department of Defense?

William Turton I think the most obvious parallel to me in writing the story —  I’m a little bit biased because I did some reporting on this earlier this year —  but what was happening at DHS, where employees were regularly being polygraphed for questions about media leaks or if employees had criticized leadership. It was kind of the exact same thing that we’ve been hearing at the FBI happening to rank-and-file staff.

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