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Steven J. Bradbury

With less than a week remaining before President George W. Bush leaves office, controversial Principal Deputy Assistant Attorney General Steven G. Bradbury on Wednesday, 14 January 2009 issued a legal opinion finding that a memorandum from President Lyndon B. Johnson to the heads of departments and agencies prohibiting use of the polygraph in the Executive Branch except under limited conditions is without legal effect. The summary of Bradbury’s opinion states:

An undated four-page memorandum from President Lyndon Johnson entitled “Use of the Polygraph in the Executive Branch”and addressed to the heads of Executive Branch departments and agencies, which was neither issued as a directive to the Executive Branch nor understood contemporaneously to have legal effect, does not now bind the Department of Justice or other entities within the Executive Branch.

It is not clear why Bradbury, who last year testified before Congress against all evidence and reason that waterboarding is not torture, has issued such a legal opinion at this late stage. Nor is it clear what this opinion may portend for future polygraph policy. Bradbury’s opinion on the Johnson polygraph memorandum is at the time of writing the only Office of Legal Counsel opinion publicly posted on the Department of Justice website for 2009.

In related news, Russ Kick at The Memory Hole reports that the Office of Legal Counsel has in recent days released a slew of legal opinions some of which had been withheld from the public for years.

It should be noted that a 2002 research review by the National Academy of Sciences found polygraph screening to be completely invalid, concluding that “[polygraph testing's] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” The Bush Administration, however, completely disregarded this damning report and instead siginificantly increased federal reliance on the polygraph. In 2008, for example, the Defense Intelligence Agency announced a plan to greatly expand its polygraph screening program and the Department of Defense began using hand-held lie detectors in Afghanistan and Iraq.