The 2017 revisions to the national adjudicative guidelines for security clearances establish a government-wide ban on using polygraph “technical calls” to deny or revoke a security clearance in the absence of “adjudicatively significant information.

The language, found within the first few pages of Security Executive Agent Directive (SEAD) 4, cements as policy a longstanding and generally accepted recognition. That is that science has never definitively proven whether polygraph machines can detect lies or if they merely register emotional responses to certain questions.

Because the underlying science is sketchy at best – and because polygraphs can be impacted by a variety of other physiological and external factors, including examiner training and/or bias – basing a security decision on something like an inconclusive polygraph or a determination of deception is not, without more, sufficient. Historically, when an applicant has been unable to pass a polygraph examination as a required condition of employment, agencies have simply dealt with the matter as a non-hiring.

In the view of this attorney, the language in SEAD 4 is straightforward and unambiguous. “Technical calls” clearly refers to the act of an examiner interpreting polygraph readings to reach a conclusion like “inconclusive” or “deceptive”. “Adjudicatively significant information” refers to either derogatory information obtained by an agency during a background investigation or an admission by the applicant of damaging information. Other “adjudicatively significant information” could include evidence that a polygraph examinee is employing counter-measures (e.g. controlled breathing) to attempt to defeat the test.

Unfortunately, at least one federal agency – U.S. Immigration and Customs Enforcement (ICE) – disagrees with this interpretation of SEAD-4. For reasons that ICE has yet to articulate, the agency believes it can deny security clearances based on polygraph technical calls like “inconclusive” or “deceptive” even when the applicant adamantly denies deception and the agency can point to no factual basis for disbelieving the applicant besides those technical calls. What really makes ICE’s stance surprising, however, is that ICE itself does not require a polygraph examination for any of its positions!

In the specific case at issue, the ICE employee’s security clearance was revoked based on the results of pre-employment polygraph examinations he took several years prior with other agencies. The employee recounts that the first examination was an extremely hostile and confrontational experience; frayed nerves from that experience resulted in skewed readings on two subsequent tests, one of which purported to show deception and the other being inconclusive.

This is the first time that I or my colleagues have ever seen an agency take such a questionable policy position, and their reason for doing so here is certainly perplexing. However, if they’re doing it in one case, they’re certainly doing it in others – and the odds are that they aren’t the only agency likely misinterpreting a policy to which all federal agencies are bound.

Given the serious career and financial ramifications that result from a security clearance denial, the Office of the Director of National Intelligence (ODNI) – the entity which issued SEAD-4 – must immediately issue clarifying guidance to agencies on how to construe the terms “polygraph technical calls” and “adjudicatively significant information.” Everyone should be on the same page for such a fundamental issue.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com