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Statement Of Senator Patrick Leahy,
Ranking Member, Senate Judiciary Committee
Hearing On "Issues Surrounding The Use Of Polygraphs"

April 25, 2001

Today, the Committee will conduct a hearing on "Issues Surrounding the Use of Polygraphs." No doubt this a worthwhile subject for a hearing. This is, however, but one of the important issues that is raised by the arrest last February of FBI Special Agent Robert Phillip Hanssen on espionage charges. This Committee has oversight jurisdiction over the Department of Justice and the FBI and has both the duty and the responsibility to examine how the FBI exercises its critical national security and counter-intelligence missions. Yet instead of scheduling a comprehensive hearing to review the actions that the FBI has undertaken to protect our national security, Members of this Committee may read in press reports about interviews given by "senior bureau officials . . . to discuss their actions," and about notes reflecting high-level meetings with the FBI Director "which were provided by the bureau" to the press. [See New York Times, April 22, 2001.]

The Hanssen case may be the most serious case of espionage in this nationís history. According to allegations in a 100-page affidavit filed in federal district court in the Eastern District of Virginia, for more than 15 years Hanssen used his position in the FBIís elite counter-intelligence unit to sell highly sensitive, classified information to the KGB. It is alleged that, over the years, Hanssen gave the KGB computer disks, volumes of documents and information about our governmentís efforts to collect intelligence on the Soviet Union and the Russian Federation. Worst of all, information Hanssen allegedly provided to the KGB led to the execution of two of undercover agents who were working for the United States. The full extent of the damage done to this countryís security is not yet known and may never be known.

I appreciate that the allegations against Hanssen are the subject of a pending criminal investigation. Obviously, we must not do anything to interfere with the work of the grand jury or to prejudice the constitutional rights of Mr. Hanssen, who has not been convicted of, or as yet formally indicted for, any crime. Moreover, we should not do anything to distract the prosecutors and government agents responsible for investigating and prosecuting this matter from their duties in the case. Finally, any oversight examination done by the Committee must be exercised cautiously and with due concern to avoid any appearance of undue political pressure and without the slightest implication that any Senator seeks to influence the outcome of a pending criminal matter or the discretion of a prosecutor or a judge.

That being said, there remains much about the Hanssen case that cries out for public oversight hearings by this Committee. It is simply astounding that a security breach of the magnitude described in the affidavit in the Hanssen case could have been allowed to go on unnoticed under the very nose of one of this nationís most elite law enforcement agencies for such an extended period of time. Further, according to press reports, a senior FBI investigator specifically warned that there could be a mole in the bureauís own ranks over two years ago, but his views were rejected. The Hanssen case therefore raises serious questions about the FBIís internal controls and security procedures and more generally about the FBIís ability to objectively and accurately assess allegations of misconduct by its own agents.

This is not the first time that these concerns have been raised about the FBI. The debacles at Waco and Ruby Ridge, the allegations of former FBI chemist Frederick Whitehurst about the mishandling of evidence at the FBI crime laboratory and allegations that FBI agents illegally leaked confidential law enforcement information to informants, who were members of organized crime, are all still fresh in the public memory. After hearings on Ruby Ridge in 1995, the Subcommittee on Terrorism, Technology and Government Information, ably led by Chairman Arlen Specter, noted the tendency of the FBI, when investigating itself, to accord its own agents "undue deference" and to accept their stories at face value without a probing inquiry. (p. 1131). I cannot help but wonder whether a similar explanation accounts for the failure of the FBI to detect Hanssenís alleged espionage for nearly 15 years, not to mention its rejection of the specific warnings of one of its own investigators about a mole within its ranks.

Questions of this sort, particularly when they arise repeatedly, tend to erode public confidence in the competence and integrity of law enforcement agencies and government institutions. In the end, the loss of the trust of the American people is a far greater threat to the FBI, and to our government generally, than the betrayal of a single agent.

I am aware that, in the wake of Hanssenís arrest, FBI Director Freeh has asked for a review of the FBIís security programs to be conducted by Judge Webster, who was the FBI Director during part of the time that Hanssen allegedly conducted his espionage activities. While I have great respect for Judge Webster, his prior position may cause some to question any conclusions and recommendations he may reach. I wrote to Judge Webster in February asking that he keep me advised of the progress of his examination, its expected completion date and his final conclusions and recommendations, if any, but to date have received no response.

Although an internal FBI review is appropriate, it is clearly no substitute for oversight hearings before this Committee, particularly given the FBIís dismal record in investigating itself. In its report on Ruby Ridge, the Subcommittee on Terrorism, Technology and Government Information noted that "adequate and independent oversight of the FBI is crucial to avoid, at a minimum, the appearance of institutional bias within the FBI." By definition, the responsibility of exercising adequate and independent oversight falls upon this Committee, not the FBI. I therefore do not believe that this Committee should defer fulfilling its oversight responsibilities until the FBI review is completed, whenever that may be.

Although, unfortunately, we will not be directly focusing on the Hanssen case today, we will be hearing testimony from some experts about the reliability of polygraph testing. Attorney General Ashcroft and others have expressed skepticism about any over-reliance on polygraph tests. I share their concerns. Historically, courts have almost always excluded polygraph evidence as unreliable. And, with a few exceptions, that has generally remained true even after the Supreme Courtís decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which gave federal trial courts greater discretion to admit scientifically novel evidence. In fact, in 1998, the Supreme Court upheld the constitutionality of a military rule of evidence that categorically excludes all polygraph evidence in court martial proceedings. See United States v. Scheffer, 523 U.S. 303 (1998). According to Justice Thomas, writing for the Court, "there is simply no way to know in a particular case whether a polygraph examinerís conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." Id. at 312.

The routine use of polygraph testing in government employment situations raises even more troubling issues. For example, let us assume that polygraph tests are accurate 90 percent of the time, as some experts claim. If the police are investigating a crime, and a suspect agrees to take a polygraph, the results of that test may be of some value to the investigation even if there is a ten percent chance that they may be wrong. However, if you polygraph thousands of employees of a government agency on a routine basis, the ten percent error rate will mean that dozens or even hundreds of innocent employees will generate results indicating -- falsely -- that they are giving deceptive answers. While I am not saying that all use of polygraphs should be prohibited, particularly in the sensitive area of national security, I am very concerned that the rights of these innocent employees be carefully protected. In particular, denying a person a government job solely on the basis on a polygraph and without any corroborating evidence of deception or other unsuitability for employment may result in wrongly excluding many qualified people from government service.

The FBI itself has apparently shared these doubts about polygraphs because, unlike other national security agencies, it has not routinely polygraphed its own agents and employees who have access to classified information. Nevertheless, according to recent press reports, the FBI has now undertaken to polygraph 500 of its own agents in reaction to the Hanssen arrest. I would like to know more about the FBIís recent about-face on polygraphs. I would also like to know whether the FBI plans to continue using polygraphs, as well as what other steps the FBI has taken or is considering taking as the result of the Hanssen case.

Those are questions that will have to wait until another day and another hearing. Consequently, the record of this hearing will necessarily be incomplete. Moreover, until we begin meaningful and comprehensive hearings into the Hanssen case, the oversight responsibilities of this Committee will remain unfulfilled.

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