- Posted on Tuesday, July 10, 2012
National Reconnaissance Office accused of
illegally collecting personal data
John Sullivan sued the CIA to get his
security clearance back. | Olivier Douliery/Abaca Press/MCT
Mark Phillips, a polygrapher, says he
was retaliated against for resisting abusive practices at the National
Reconnaissance Office. | Olivier Douliery/Abaca Press/MCT
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More on this Story
- Story | National Reconnaissance Office view: Whistleblower is merely a malcontent
- Story | National Reconnaissance Office hasn’t told police of crime confessions
- Graphic | Secretive agency born of Cold War spying
- Document | IG Report of Mark Phillips re: National Reconnaissance Office
- On the Web | McClatchy special report, 'The Polygraph Files'
By Marisa Taylor |
McClatchy Newspapers
WASHINGTON — One of the nation’s most
secretive intelligence agencies is pressuring its polygraphers to obtain
intimate details of the private lives of thousands of job applicants and
employees, pushing the ethical and legal boundaries of a program that’s
designed instead to catch spies and terrorists.
The National Reconnaissance Office is
so intent on extracting confessions of personal or illicit behavior that
officials have admonished polygraphers who refused to go after them and
rewarded those who did, sometimes with cash bonuses, a McClatchy investigation
found.
The disclosures include a wide range of
behavior and private thoughts such as drug use, child abuse, suicide attempts,
depression and sexual deviancy. The agency, which oversees the nation’s spy
satellites, records the sessions that were required for security clearances and
stores them in a database.
Even though it’s aggressively
collecting the private disclosures, when people confess to serious crimes such
as child molestation they’re not always arrested or prosecuted.
“You’ve got to wonder what the point of
all of this is if we’re not even going after child molesters,” said Mark
Phillips, a veteran polygrapher who resigned from the agency in late May after,
he says, he was retaliated against for resisting abusive techniques. “This is
bureaucracy run amok. These practices violate the rights of Americans, and it’s
not even for a good reason.”
The agency refused to answer
McClatchy’s questions about its practices. However, it’s acknowledged in
internal documents that it’s not supposed to directly ask more personal
questions but says it legally collects the information when people
spontaneously confess, often at the beginning of the polygraph test.
After a legal review of Phillips’
assertions, the agency’s assistant general counsel Mark Land concluded in April
that it did nothing wrong. “My opinion, based on all of the facts, is that
management’s action is legally supportable and corrective action is not
required,” he wrote.
But McClatchy’s review of hundreds of
documents – including internal policy documents, memos and agency emails –
indicates that the National Reconnaissance Office is pushing ethical and
possibly legal limits by:
– Establishing a system that tracks the
number of personal confessions, which then are used in polygraphers’ annual
performance reviews.
– Summoning employees and job
applicants for multiple polygraph tests to ask about a wide array of personal
behavior.
– Altering results of the tests in what
some polygraphers say is an effort to justify more probing of employees’ and
applicants’ private lives.
Various national security experts,
including those who support the use of polygraph in general for security
screening, said they were disturbed by what McClatchy found, especially
considering that the number of polygraph screenings has spiked in the last
decade.
“There’s a narrow jurisdiction for a
polygraph program, which is to promote security,” said Steven Aftergood, a
senior analyst with the Federation of American Scientists, a nonpartisan
research center that tracks intelligence policies. “When agencies exceed their
authority, they not only violate the privacy of employees, they corrupt the
entire process.”
The dispute is part of a long-running
debate over the proper use of polygraph by the federal government in screening
employees, when it’s not known whether the machine can detect the difference
between a lie and the truth or simply registers an emotional response.
In 2002, the National Academies, the
nonprofit institute that includes the National Academy of Sciences, concluded
that the federal government shouldn’t use polygraph screening because it was too
unreliable.
Yet since then, in the Defense
Department alone, the number of national-security polygraph tests has increased
fivefold, to almost 46,000 annually. Many of those who are required to undergo
the tests aren’t just bureaucrats in Washington but also private contractors
across the country.
Federal agencies say the information
gathered during polygraph screenings helps them root out undesirable and even
dangerous employees who otherwise wouldn’t be detected during routine
background investigations, which often are described as expensive and
time-consuming.
But some national security experts
question whether U.S. agencies are striking the appropriate balance between
protecting Americans’ privacy rights and the nation’s security interests as
agencies are being permitted to ask what could be seen as more intrusive
questions.
Last month, the Obama administration
announced that federal agencies, including the National Reconnaissance Office,
now may ask employees and applicants during polygraph screenings whether
they’ve leaked classified information to the news media.
“If a whole program is susceptible to
manipulation, then relying on it further is all the more disturbing,” Aftergood
said.
The National Reconnaissance Office
orders the second highest number of screening polygraphs in the Pentagon,
conducting about 8,000 a year at its headquarters in Chantilly, Va., and at
locations in Los Angeles and the Silicon Valley area.
The agency’s is among eight Pentagon
polygraph programs that under Defense Department policy can directly ask only
about national security issues in what’s known as the counterintelligence scope
polygraph. The test was designed to catch spies and terrorists who are trying
to infiltrate the government without encroaching unnecessarily on the private
lives of government employees and military personnel. Polygraphers are allowed
to ask about espionage, terrorism, sabotage and the unauthorized sharing of
classified information.
But about five years ago, the National
Reconnaissance Office began pressuring polygraphers to pursue information
outside those limits in what amounted to an unwritten policy, said a group of
polygraphers who agreed to describe the practices to McClatchy. The
polygraphers include Phillips, a former Marine who worked for a number of
intelligence agencies over two decades, and a former National Reconnaissance
Office colleague, Chuck Hinshaw.
Both agreed to be named because they
think the agency’s practices violate Defense Department policies and should be
stopped.
Other polygraphers backed their
accounts, but they asked to remain anonymous because they feared retaliation.
“I was coached to go after this stuff,” one of the polygraphers said. “It blew
my mind. They were asking me to elicit information that I’m not permitted to
ask about, and I told them I wasn’t going to do it.”
Another longtime polygrapher said the
National Reconnaissance Office had established an off-the-books policy that
encouraged going after prohibited information.
“The organization says in writing that
they’re not supposed to be asking about this information, when in fact behind
closed doors they are pushing (polygraphers) to actively pursue it,” the
polygrapher said.
Hinshaw, who said he’d witnessed the
improper practices as a former acting supervisor, accused the agency of
becoming so cavalier about following the rules that the polygraph branch chief,
Michael McMahon, pressured him to change the results of the agency director’s
polygraph if he failed the test. In the end, director Bruce Carlson passed, but
Hinshaw said the incident demonstrated how the agency’s use of polygraph was
arbitrary and wasn’t about protecting the country.
McMahon didn’t respond to emails and
phone messages from McClatchy inquiring about the incident.
“There’s a line you have to draw,” said
Hinshaw, who worked in the program from 2005 until earlier this year. “The
original idea for using polygraph to clear people was to ferret out moles and
spies. Now it’s morphing into an ambiguous exam where anything’s possible.”
The National Reconnaissance Office,
meanwhile, has branded Phillips and Hinshaw troubled employees. Before Phillips
resigned, the agency suspended him for three days, saying he was insubordinate,
among other complaints, and it revoked Hinshaw’s security clearance earlier
this year, citing his foreclosure on his family home.
Both men said they thought the agency
had retaliated against them for trying to resist the polygraph practices, and
records show that they’d voiced their concerns before the agency took action
against them. The Pentagon’s inspector general is investigating Phillips’
complaint.
But even if the agency were found to be
violating Pentagon policies, the laws that limit the government’s use of
polygraph in screening aren’t specific on what constitutes an illegal abuse.
The Privacy Act of 1974 requires that the government collect only personal
information that’s necessary and relevant, and a 1981 presidential directive
calls for “the least intrusive collection techniques feasible.”
Much of the interpretation of what that
means has been left to the federal departments that run the polygraph programs.
“Some polygraph programs have been
getting away with all sorts of abuses for years,” said Mark Zaid, an attorney
for Phillips who’s been handling national security cases for 20 years. “It’s
very difficult to hold them accountable.”
Why is the National Reconnaissance
Office interested in such private details? In internal documents and emails,
supervisors told polygraphers they felt pressure from the officials known as
adjudicators, who make the final decisions on national security clearances.
The agency’s motives, however, are more
complicated, some of the polygraphers said.
The Pentagon’s test is so restricted to
counterintelligence issues that it’s notorious among polygraphers for
compelling admissions of mundane and ultimately harmless infractions. One of
the most common confessions involves harried bureaucrats who admit to taking
classified documents home by mistake. By collecting confessions to repulsive or
criminal behavior, officials can justify using polygraph screenings to their
bosses, Congress and a skeptical public despite questions about the test’s
reliability, the polygraphers said.
As a result, the National
Reconnaissance Office closely tracked how many personal confessions it
collected. The agency called them “Code 55 admissions,” the records show.
In fiscal year 2011, almost 50 percent
of the 757 confessions the agency collected were of the personal nature that
the rules said shouldn’t be directly pursued, the agency’s statistics show. Of
33 polygraphers, one-third collected more confessions related to personal
behavior than to national security violations.
Other polygraph programs, such as those
in the Naval Criminal Investigative Service, also conduct limited
national-security polygraph screenings, but in an entire year their
polygraphers may not encounter any confessions that are outside the limits of
the test. It’s a rare occasion when someone blurts it out without prompting, officials
said.
“If an agency is getting a big portion
of its confessions that are outside the limits, it’s an indication that they’re
going on fishing expeditions,” said John Sullivan, a former CIA polygrapher of
30 years. “And if they’re doing that, it’s wrong and being done under false
pretenses.”
Phillips and Hinshaw accused the
polygraph program’s branch chief, McMahon, of encouraging improper practices.
Within the intelligence world, only the
CIA and the National Security Agency are permitted to directly ask about drug
use, unreported crimes and falsification of the forms filled out for national
security clearances, which require a wide array of personal information. The
tests are known as lifestyle polygraphs.
Late last year, the Pentagon discovered
that the National Reconnaissance Office had ordered five of the lifestyle tests
in violation of Defense Department policies, according to an internal report
obtained by McClatchy. The agency then claimed to have the legal authority to
do so, when it was supposed to be asking only national security questions
designed to catch spies and terrorists, the report said. The Pentagon concluded
that the program was in “full compliance” because the agency said it was a
mistake.
Polygraphers, however, say the agency’s
pursuit of the off-limits information is much more widespread than the
Pentagon’s report noted. Records show that the agency ordered at least one more
lifestyle test after it was told to stop.
The agency also pursues the information
in its routine counterintelligence tests, polygraphers said. In one instance
last year, Phillips’ supervisors told him to “assess” the mental health of an
applicant during a polygraph test, records show. Phillips said he’d refused to
do it.
As a result of its efforts, the agency
ends up with a vast accumulation of personal details of questionable
national-security significance, polygraphers said.
Last September, a woman who’d held a
clearance for more than 15 years and already had passed a national security
polygraph was interrogated for more than four hours over two additional
polygraph sessions, said Hinshaw, who said he’d been ordered to do it.
Hinshaw’s supervisors launched the aggressive inquiry because they suspected
that the woman had smoked pot more than the one time years before that she’d
admitted to, records show. In the end, however, the only other information the
National Reconnaissance Office extracted from her was that she’d been molested
at age 16.
Hinshaw said he’d received thousands of
dollars in bonuses over several years in part because he’d collected a high
number of confessions, including the more personal ones.
Phillips, on the other hand, had a much
lower collection rate and received negative performance reviews. His
supervisors cited his reluctance to collect the Code 55 information as part of
the reason for their dissatisfaction with him.
“There are ways of leading people into
making these admissions even though you’re not supposed to,” Phillips said. “By
setting up a system that gives polygraphers an incentive to go after the
information, the agency is pressuring them to collect it.”
Despite the agency’s interest in
criminal behavior, those who confess to serious offenses aren’t always
criminally prosecuted even when child molestation is involved, McClatchy found.
In one case, a contractor who was a
former Escondido, Calif., substitute teacher admitted to molesting a
third-grade student in 2005 during outside tutoring sessions paid for by the
girl’s immigrant parents. In a 2010 polygraph session, the man said that if he
were asked, “ ‘Have you ever molested a 9-year-old?’ I’d have to say yes.”
The Escondido Police Department and
school district where he’d been employed weren’t notified of the incident.
After being contacted by McClatchy, the school district called the Escondido
Police Department to file a report.When National Reconnaissance Office
polygraphers asked supervisors in a meeting last summer why people weren’t
being arrested on the spot after such confessions, they were told that the
allegations were referred to the appropriate authorities, Phillips and Hinshaw
said.
The agency refused to answer
McClatchy’s questions about the molestation confession, saying in a statement
only that its polygraph program “is in compliance with the law.”
National Reconnaissance Office
statement on its polygraph program
“The National Reconnaissance Office
directs, manages and oversees appropriate investigative inquiries, including
polygraph, for the purposes of rendering informed security access
determinations. Such inquiries and determinations are in full compliance with
the law and provide the security compliance required to best protect and
further Intelligence Community program activities and objectives.
“If adverse information is disclosed
during the administration of a polygraph examination the information is
evaluated and forwarded to the appropriate authorities. For Privacy Act
purposes the NRO has a policy of not commenting on specific cases.
“The National Center for Credibility
Assessment (NCCA), Quality Assurance Program (QAP), conducted an on-site
inspection of the NRO Polygraph Program on November 15-17, 2011. During the QAP
inspection, 118 criteria in nine primary areas were reviewed. Upon conclusion
of the inspection, the NRO Polygraph program was found to be in full compliance
with their policies and procedures and met or exceeded all standards required
of a federal government polygraph program.”
Tish Wells contributed to this article.
Email: mtaylor@mcclatchydc.com
Read more here: http://www.mcclatchydc.com/2012/07/10/155587/national-reconnaissance-office.html#storylink=cpy
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