The FBI has singled out Chinese-Americans as part of a controversial
insider-threat reduction program that has sought to flag alleged efforts
to manipulate polygraph tests
, according to a leading national security defense attorney.
"The government reacts with this sledgehammer instead
of laser precision to determine who would be an insider threat which is
very difficult to predict," said Mark Zaid, who has several clients
with ongoing disputes involving intelligence agencies including the
FBI. "They're sacrificing tons, dozens and dozens of Americans who're
doing nothing but their jobs, and the FBI is one of the worst to do
this."
Zaid argues the program is flagging potentially innocent people based on a questionable standard.
One of Zaid's clients -- who asked not to be
identified for fear of further retaliation – explained how it works. The
client said, in their case, an evaluator alleged during a routine
polygraph that the FBI employee had used "counter measures" to affect
the accuracy of the test.
The National Center for Biotechology Information
describes "counter measures" as changes in behavior designed to
manipulate the test results. They include the use of a "physical
countermeasure (biting the tongue or pressing the toes to the floor) or a
mental countermeasure (counting backward by 7) among others."
Tom Mauriello, an adjunct lecturer and laboratory
instructor for the Department of Criminology and Criminal Justice at the
University of Maryland, further explained that, “No one in the
polygraph community has really agreed on a specific definition, but I
would say a countermeasure (CM) is the intentional manipulation of the
polygraph subject's physiology by the subject with the explicit intent
to distort their reactions.”
Agencies have sought to flag the use of “counter
measures” amid the fear of an insider threat from China, in the wake of
high-profile breaches including the compromise of more than 21 million
records at the Office of Personnel Management.
Mauriello said the greatest concern is
security-clearance applicants "intentionally trying to beat the test in
order to gain access to sensitive and classified information for
purposes of espionage, etcetera. That is the person the process is
trying to identify, not an overly nervous person who is just trying to
pass the test."
But critics suggest ordinary workers are getting
caught up in the process. Zaid said once a government employee is
accused of countermeasures, it becomes difficult to prove a negative.
"All this device is doing is measuring your
breathing, your heartrate, your galvanic sweat response. And it's
determining based on that if you're telling the truth or not,” he said.
“And it's determining are you telling the truth depending on where your
physiological response falls."
Mauriello said there is room for confusion. "It is my
opinion that when a subject is being told that they are not passing
their polygraph test, their attempt to try to help themselves is being
labeled as them using countermeasures rather than them just trying to
pass the test," he said.
Asked if the tool is open to abuse, Mauriello
emphasized, "I don't think there is any intentional abuse by anyone in
the polygraph community in regards to this matter. They are trying to
use the polygraph effectively for what it is, just an ‘investigative
tool.’ I believe it is a lack of collective understanding and definition
of what a countermeasure is and maybe overzealous examiners looking for
something that is not there."
After being accused of using countermeasures, the
federal employee who spoke with Fox News said they were placed on unpaid
leave -- and with a suspended clearance, could not seek other work in
the national security sector. Both Zaid and the employee said there is
no timeline on when an appeal should be resolved. In the individual's
case, the first level of review took more than a year.
"You don't see any leadership inside the agencies or
on the Hill to take a look at this. There's still thankfully a small
number of cases," Zaid said. "They are on unpaid leave for two or three
years. There's no voice for these people. When you look at it you have
anything but utter disappointment and sadness and pathetic feelings for
how our system works."
Polygraphs are given every five years to most
security-clearance holders. As a way to mitigate the risk, some
employees are polygraphed on a more frequent basis due to factors such
as birth outside the U.S., foreign-born parents, frequent overseas
travel or financial trouble.
Fox News was told that about 18 months ago, the FBI
changed its procedures, and those accused of countermeasures were given
the opportunity to take at least one more polygraph. Whether their
clearance was suspended, and they were placed on unpaid leave, was
decided on a case-by-case basis.
Fox News asked the FBI for comment on the allegation
that the review process was slow, and the use of countermeasures was too
subjective. Fox News also asked the bureau if there is publicly
available data to test whether Asian Americans are being wrongly singled
out.
The FBI did not provide data so the claim could not
be tested. An FBI spokesperson told Fox News in a statement: “All
employees undergo a periodic reinvestigation to determine whether a
person’s continued access to classified information is clearly
consistent with national security. The polygraph examination augments
the FBI security process as one of many tools utilized when collecting
information through investigation for making access eligibility
determinations. Such determinations are not based solely on the result
of a polygraph examination.”
With his client now in a second year of unpaid leave,
Zaid said the issue appears much larger. "As much as we are supposed to
be protecting these ethnic groups from discrimination," Zaid said,
"once you start seeing that, you have to raise your eyebrows and ask
‘are we racially profiling these individuals’?”