The Washington Post reports the passing of Chris Gugas, Sr., a founding member and past president of the American Polygraph Association who worked for the CIA in the early 1950s. Mr. Gugas died of congestive heart failure on 20 October 2007. The most prominent of his more than 40,000 polygraph examinations was that of James Earl Ray, the man convicted for the 1968 assassination of civil rights leader Dr. Martin Luther King, Jr. Gugas judged Ray deceptive.

Update: The Los Angeles Times has also published an obituary.

New York Times journalist Alan Feuer reports on the case of polygraph victim Abdallah Higazy in “Lawsuit Is Reinstated for Man Wrongly Suspected in 9/11″:

A federal appeals court in Manhattan yesterday reinstated a lawsuit against the F.B.I. that was brought five years ago by an Egyptian student wrongly suspected of aiding the Sept. 11 hijackers with a sophisticated aviation radio in his hotel room.

The ruling, by the United States Court of Appeals for the Second Circuit, overturned a lower court’s decision to dismiss the lawsuit by the student, Abdallah Higazy, who was detained for 34 days shortly after the terrorist attack.

Mr. Higazy said that during an interrogation an F.B.I. agent coerced him into saying that the radio — which a security guard at the Millenium Hilton Hotel had said was in his room — was his when it was not.

Mr. Higazy, the son of a former Egyptian diplomat, came to New York from Cairo in August 2001 to study computer engineering at the Polytechnic University in Brooklyn. He had had some schooling in Virginia and was sponsored, in part, by the United States Agency for International Development, which put him up in a 51st-floor corner room at the Millenium, across Church Street from the twin towers.

When the towers were attacked, Mr. Higazy fled the hotel with all its other panicked guests, taking only his wallet and the clothing on his back.

Three months later, he returned to retrieve his belongings and was arrested by the F.B.I. on a material witness warrant after the security guard said he had found the radio, capable of communicating with passing airplanes, in Mr. Higazy’s room.

Within days, Mr. Higazy was given a lie-detector test and interrogated by Special Agent Michael Templeton of the F.B.I. who, Mr. Higazy said, coerced him into claiming ownership of the radio by making threats against his family in Egypt.

Mr. Higazy’s suit claims that Agent Templeton, who has denied the charges, said he would make sure Egyptian security forces gave his family “hell” unless he cooperated.

During Mr. Higazy’s detention, an airplane pilot, an American, returned to the Hilton to retrieve the radio, which he said he had accidentally left behind in his 50th-floor room.

Mr. Higazy was released. The security guard, Ronald Ferry, pleaded guilty to making false statements to the F.B.I., and an internal inquiry cleared Agent Templeton and others of any wrongdoing connected to the false confession.

In December 2002, Mr. Higazy filed his lawsuit in Federal District Court in Manhattan, claiming that his Fifth Amendment right against self-incrimination had been violated. The suit was dismissed in a June 2005 decision by Judge Naomi Reice Buchwald, who wrote in her order that “Templeton’s conduct and threats as a matter of law cannot be classified as conscience-shocking or constitutionally oppressive,” the appeals court noted.

In its own ruling, the appeals court sent the question of whether Mr. Higazy’s Fifth Amendment rights had in fact been violated back to Judge Buchwald for reconsideration and a potential trial. It said that Agent Templeton was not immune, as an employee of the government, from civil rights claims.

The law “asks whether an officer in Templeton’s shoes would have known that he was violating the right in question,” the appellate panel wrote. “We believe that a reasonable jury could conclude that he did.”

Earl Ward, one of Mr. Higazy’s lawyers, said, “We’re very pleased that the court reinstated the lawsuit, and we’re looking forward to bringing this issue before a jury.”

The F.B.I. declined to comment.

Unmentioned in the Times article is the fact that the Court’s opinion re-instating Higazy’s lawsuit was originally issued (and posted in PDF format to the court’s website) on Thursday, 18 October 2007, only to be withdrawn some two hours later. Howard Bashman, who posted a copy of the withdrawn opinion on his How Appealing legal blog writes:

Catherine O’Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe’s telephone call was to ask me to take down this blog’s posting of the decision to the internet.

Bashman declined to take down the withdrawn opinion, and AntiPolygraph.org has mirrored it, along with the redacted opinion issued on Friday, 19 October, on our Polygraph Litigation page.

The Wait a Second! law blog comments on the unusual withdrawal of a published opinion, noting that the redacted information concerns the circumstances leading to Higazy’s coerced false confession.

For further discussion of this case, see FBI Polygrapher Michael Templeton Named in Lawsuit on the AntiPolygraph.org message board.

New York Times reporters Duff Wilson and Michael S. Schmidt report:

The former track star Marion Jones, one of the most accomplished female athletes in the world, is expected to plead guilty today to lying to federal agents about her use of performance-enhancing drugs, two lawyers connected with the case said yesterday. The admission would end years of denial and would likely lead to her being stripped of the record five medals she won in the 2000 Olympics in Sydney, Australia.

Ms. Jones, 31, who won three gold and two bronze medals in 2000, would become the first athlete convicted in the cases arising out of the four-year Bay Area Laboratory Co-operative investigation that has fueled a continuing series of steroid scandals in sports. Five men who manufactured, marketed or supplied the drugs to athletes have pleaded guilty, and three of them have served time in prison.

Ms. Jones is expected to plead guilty to one count of making false statements to federal agents about her use of performance-enhancing drugs and one count of making false statements to federal agents in connection with a separate check fraud case, the lawyers said.

…

For years, Ms. Jones has repeatedly denied using banned substances and said she passed a lie detector test administered by a former F.B.I. special agent. But she has been contradicted by other testimony to federal agents.

The former FBI special agent who administered Jones’ polygraph test is Ron Homer of Walnut Creek, California. Washington Post staff writer Amy Shipley reported on Homer’s polygraph examination of Jones in an 18 June 2004 article titled, “Jones Underwent Polygraph Test.” Excerpt:

Marion Jones passed a lie detector test in which she was asked if she had ever taken performance-enhancing drugs, her attorneys announced yesterday in another public attempt to persuade the U.S. Anti-Doping Agency to drop its case against the five-time Olympic medal winner.

In a test administered by certified polygraph examiner Ronald R. Homer in her attorney Joseph Burton’s San Francisco office Wednesday, Jones was determined to have truthfully answered two questions in which she denied ever using performance-enhancing drugs, Burton said during a conference call.

“The passing of the polygraph supports fully the position Marion has taken all this time, that she never, ever has used performance-enhancing drugs from anybody at any time,” Burton said. “This matter should be over if there really is any fairness in the process.”

Burton distributed a letter from Homer in which Homer stated “it is my professional opinion that Ms. Jones was truthful when answering.” Homer also stated that another certified polygraph examiner conducted a blind analysis and rendered the same opinion.

Jones responded no when asked if she had ever personally used performance-enhancing drugs, and if she was lying about any personal use of performance-enhancing drugs.

You don’t have to go to spy school or somehow believe your own lies to fool the polygraph. See AntiPolygraph.org’s free e-book The Lie Behind the Lie Detector (1 mb PDF) to find out how.

In Elyria, Ohio, 18-year-old Willie Evans IV is standing trial as an adult for the 2006 murder of Michael Smith. Evans, who was a minor when the crime was committed, is being tried as an adult and faces the possibility of a life sentence. Ohio is one of a number of states in which polygraph “evidence” may be admissible at trial if both the prosecution and the defense stipulate to its admissibility. The way this usually works is that a criminal suspect is offered the opportunity to prove his innocence by submitting to a government-administered lie detector test, with the stipulation that — pass or fail — the results will be admissible in court. Often, the prosecution will suggest that the case may be dismissed if the suspect passes. Willie Evans accepted such an arrangement and failed his lie detector test.

Elyria Chronicle-Telegram reporter Brad Dicken summarized the case in an article published last week:

ELYRIA — Willie Evans IV has denied having anything to do with the shooting death of 64-year-old Michael Smith last year, but the man who administered a lie-detector test to him testified Tuesday that Evans was lying.

Evans, 18, showed signs of deception when William Evans II asked him whether he ever held Smith’s wallet, whether he shot Smith, whether he was at the trunk of the car in which Smith was found dying and whether he pulled the trigger, William Evans testified.

Willie Evans and William Evans are not related.

Polygraph examinations typically aren’t admissible in court, but Willie Evans and prosecutors reached an agreement that he would take the test and whatever the results were would be allowed into his aggravated murder trial.

Michael A. Smith was found dying in the trunk of his car April 13, 2006.

That agreement didn’t stop defense attorney Paul Griffin from questioning the validity of the tests and asking county Common Pleas Judge Christopher Rothgery to bar the results, a request Rothgery denied.

Griffin suggested that external events such as explosions, thunder and lightning, or a police presence could throw off a test, but William Evans said that wasn’t the case with the examination he gave Willie Evans.

If Griffin’s best argument against the validity of polygraphy was the foregoing, then he has done a poor job defending his client. With or without “external events,” polygraph testing has no scientific basis to begin with. If Griffin is the same lawyer who gave defendant Evans the remarkably bad legal advice of accepting the stipulation agreement, then he has a conflict of interest in now arguing against the reliability of polygraphy.

The only thing that happened to throw off the test, William Evans said, was that Willie Evans burped once during the test, and he had to repeat a question because of it.

Smith was found shot in the trunk of his wife’s car shortly after midnight on April 13, 2006. The retired steelworker had gone outside to move his wife’s car, which she had left on the street at his request while he was at a horse racing track for the evening.

Evans is accused, along with Tyrone Young and Barry Williams, of confronting Smith and stealing his wallet, which was found by police 15 months later about a block away.

The three men all face life in prison if convicted, but Williams is listed as a witness in Evans’ case and may have cut a deal with prosecutors for a reduced sentence in exchange for his testimony.

…

In today’s Chronicle-Telegram, reporter Michael Baker follows up with a feature article titled, “Do Polygraphs Detect the Truth, or Are They Pseudo Science?” AntiPolygraph.org co-founder George Maschke is among those interviewed for this article:

When the 12 men and women determine the fate of 18-year-old Willie Evans IV, they will certainly look back to the testimony delivered on Sept. 11.

Last Tuesday, professional polygraphist William Evans II (who is not related to the defendant) testified that the defendant had failed the polygraph test he administered.

Does this seal the fate of Willie Evans, charged with first-degree murder of Michael A. Smith?

Should it?

The use of polygraph results in court cases, which has been hotly debated for decades, has eluded a clear consensus on their accuracy.

Actually, while Ohio courts may not have reached a clear consensus on the accuracy of polygraphs, there is no raging debate amongst scientists: polygraph testing is junk science.

A recent article submitted by the Committee of Concerned Social Scientists concludes after significant research that polygraph testing is a “valid application of psychological science” with a “known but acceptable error rate,” and that it does not overwhelm jurors.

The Committee of Concerned Social Scientists prepared a pro-polygraph amicus brief in U.S. v. Scheffer, a federal case in which the U.S. Supreme Court ruled against the admissibility of scientists. One of the “concerned social scientists” who co-signed the brief is American Polygraph Association past president Edward I. Gelb of Los Angeles, who has been unmasked as a phony Ph.D.

Many people, though, still stand firmly opposed to allowing polygraph results to be used as evidence in court cases.

“These polygraph results should not be considered evidence at all,” said George Maschke, co-founder of antipolygraph.org.

“It can play a major role in determining if this kid will spend his life free or imprisoned, and there’s just no scientific data to support that it should,” he said.

But Charles Honts, a professor of psychology at Boise State University and a licensed polygraphist for more than 30 years, believes that there is.

“This is an empirical question, and it can be answered with data — polygraphs have proven time and time again to be accurate. I have testified in court for years that they should be admissible,” he said.

It’s true that Charles Honts has argued for years that polygraph results should be admissible as evidence in court. But he is one of only a handful of academics to hold such a fringe viewpoint. In a 2005 case, a federal judge discredited him, calling his intellectual honesty into serious question.

Honts admits there are ambiguities. “There are people involved. Just like in psychological tests, there could be human error,” he said.

“A polygraph is only as good as the person operating it,” said Donnie Todd, owner of Quest Consultants in Delaware, Ohio.

“An examiner can drastically affect the accuracy of polygraph results,” said Todd, who has administered more than 4,000 examinations.

William D. Evans II has a great deal of polygraph experience under his belt.

For more than 30 years, he has performed polygraph tests and has become convinced over time of their accuracy.

“They’re amazing investigative tools. Polygraph accuracy far exceeds eyewitness testimony, which has been measured as 70 to 75 percent accurate — tops,” Evans said.

“Polygraphs are 95 to 98 percent accurate,” he said. “Assuming I could pick my examiner, I would stake my freedom on a polygraph,” he said.

The National Academy of Sciences sharply disagrees with polygrapher Evans regarding the accuracy of polygraphy. In its landmark 2003 report, The Polygraph and Lie Detection, the Academy concluded:

Polygraph Accuracy Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.

Theoretical Basis The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.

Research Progress Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner. Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception.

Future Potential The inherent ambiguity of the physiological measures used in the polygraph suggest that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.

Reporter Michael Baker continues:

Maschke, though, would not [stake his freedom on a polygraph].

“They’re junk science,” he said. “Voodoo. The only people who say that polygraphs have 98 percent accuracy have a vested, financial interest in them,” he said.

Honts strongly disagrees with this claim.

Honts, as a polygraph practitioner, is among those who have a “vested, financial interest” in polygraphs.

“Although there is ambiguity involved, the study of polygraphs has become a lot more scientific in recent years,” he said.

This was made clear in a study published just this year. In an attempt to compare polygraph studies with strictly scientific tests (like X-rays and ultrasound) and psychological studies (like personality tests), the polygraph performed surprisingly well — equal to or better than the other two in various tests, according to “A Comparative Analysis of Polygraph with other Screening and Diagnostic Tools,” Honts said.

“The world community is recognizing the accuracy and reliability of polygraphs. Their use is growing worldwide — fast,” Honts said.

In response to these studies, Maschke said that the author, Philip E. Crewson, “errs by saying that polygraph ‘testing’ is scientifically comparable to others.”

The study in question was funded by the federal government’s polygraph school and reproduced (not this year, but in 2003) in Polygraph, a trade journal published by the American Polygraph Association. It should be greeted with the same skepticism with which one would receive a tobacco industry study into the linkage between cigarette smoking and cancer.

Quoting another study, Maschke said Dr. Alan Zelicoff examined polygraph results in real-world conditions and found that “if a subject fails a polygraph, the probability that she is, in fact, being deceptive is little more than chance alone.”

“It’s basically a coin flip,” Maschke said.

See “Positive and Negative Predictive Values of Polygraphs: Results from published ‘field’ studies” (255 kb PDF) by Dr. Alan P. Zelicoff, M.D.

As Willie Evans can do little more than sit back and watch, he is certainly hoping that his freedom will not be determined by an unlucky coin flip.

In Ohio, polygraph results are only admissible in court if both the prosecution and defense agree before the test.

The jury will certainly consider the importance of the fact that, according to William D. Evans, the polygraph detected “signs of deception” when the defendant was asked whether he shot Smith, ever held Smith’s wallet and whether he was present at the trunk of the car in which Smith was found dying.

The jury should properly accord no significance to Willie Evans’s polygraph results. It should be recalled that in a 1978 Ohio murder case in which the results of a “stipulated” polygraph were admitted into evidence, Floyd “Buzz” Fay of Perrysburg, Wood County, was wrongly convicted of murder and sentenced to life in prison. It was only through the diligence of his public defender, Adrian Cimerman, that the Fay was conclusively exonerated and ultimately freed after having spent two years in prison.

Anthony Nici, a veteran attorney with an offices in Avon, has had extensive experience with polygraphs. He said that the tests — while notoriously variable and infrequently admitted as evidence — do hold a large amount of sway when it comes to the jury.

“In high-profile cases,” Nici said, “I often immediately test my clients so that I can know. And if they pass, I try and get them submitted as evidence.”

Nici said it is difficult — but of the utmost importance — to find a reliable examiner.

“There are only a couple of reliable examiners in the whole state. They’re becoming harder and harder to find,” he said.

Under terms of attorney-client privilege, a defense lawyer can shop a client around from polygrapher to polygrapher until he/she “passes” one. The results of any “failed” polygraphs need never be disclosed. One wonders what Nici considers to be a “reliable” examiner — one who will reliably deliver the desired result?

Evans, who has worked for both prosecution and defense attorneys, said the results of his exams help put the guilty in jail and keep the innocent out — and are a lot more reliable and complex than “heads or tails.”

Evans’s exams may also help put the innocent in jail and keep the guilty out. In most cases, he will have no way of knowing. New Jersey polygrapher Peter J. Brannon, a past president of the American Association of Police Polygraphists, recently learned that a case he considered a feather in his cap actually resulted in an innocent man spending 22 years in prison.

Jeff Gamso, legal director of the American Civil Liberties Union of Ohio, has some doubts about this analysis.

“In general, we don’t trust the results of polygraphs. There are just too many factors that can affect the outcome. And it’s all too easy for a jury to be misled by them.”

Willie Evans’ attorney, Paul Griffin, also raised concerns about the validity of the tests and asked county Common Pleas Judge Christopher Rothgery to bar the results. Griffin suggested that external factors such as explosions, thunder or a police presence could affect the results of a test. Rothgery denied the request.

“The defense attorney’s critique was woefully inadequate,” Mashke [sic] said. “He didn’t attack the fundamental shortcomings of polygraphs at all.”

“I don’t know many defense attorneys who would readily consent to a polygraph examination for their clients due to the concerns about their validity,” Gamso said.

“It certainly indicates a bad gamble on the part of the defense,” he said.

Indeed, it is a bad gamble. The late David T. Lykken, author of the seminal treatise on polygraphy A Tremor in the Blood: Uses and Abuses of the Lie Detector, noted that “an innocent suspect has nearly a 50:50 chance of failing a CQT [Control Question Test -- the most commonly used polygraph technique] administered under adversarial circumstances, and those odds are considerably worse than those involved in Russian roulette.

For examples of the kind of arguments that have been successfully used to rebut polygraph “evidence,” see Professor William G. Iacono’s article, “Forensic ‘Lie Detection’: Procedures Without Scientific Basis,” Dr. Drew C. Richardson’s “Evaluation and Opinion of CQT Polygraphy,” and Professor Emeritus John J. Furedy’s “The North American Polygraph and Psychophysiology: Disinterested, Uninterested, and Interested Perspectives.”

While we will eventually be informed of the fate of Willie Evans IV, we may never know what role the “gamble” — the polygraph — played in the jury’s decision.

Judge Rothgery’s unfortunate decision to admit the results of a pseudoscientific procedure roundly discredited by the scientific community should be considered reversible error in the event that Evans is convicted.

In “Web of Suspicion: An Agent’s Career Ruined,” Los Angeles Times staff writer H.G. Reza reports on the case of retired FBI special agent Rita Chiang, whose career was cut short in the aftermath of a failed polygraph screening examination. This case is eerily similar to that of former FBI special agent Mark Mallah and is an example of precisely the kind of self-inflicted wound that retired FBI scientist and supervisory special agent Dr. Drew C. Richardson, Ph.D. warned against in a February 2001 memo to then FBI Director Louis Freeh. Freeh, who never responded, began a program of increased reliance on polygraph screen in the aftermath of the Robert Hanssen espionage case — a policy made permanent by his successor, current FBI Director Robert S. Mueller III. It’s worth noting that Leandro Aragoncillo, the only FBI spy caught since Hanssen, passed his polygraph. L.A. Times reporter H.G. Reza writes:

The two male agents pictured with Rita Chiang in the FBI poster were smiling, but her stare left no doubt that she was all business. Chiang was a recruiting magnet for the FBI, but it was her skill as an investigator that got her noticed.

The photo appeared in magazines and on billboards throughout the country in the 1990s, the picture cropped so tightly that only a sliver of her face could be seen. Anonymity was an asset in her job, where she matched wits with agents from the People’s Republic of China in the furtive world of counterintelligence.

But on Jan. 14, 2002, Chiang was stripped of her badge and gun and escorted out of the West Los Angeles office. FBI Director Robert S. Mueller III suspected that she was a mole for Chinese intelligence and ordered her suspended with pay while she was investigated.

Chiang was later cleared when her boss was identified as the security leak, but she contends that by then her reputation was ruined and her career derailed. She filed a discrimination suit against the agency, but it was tossed out of court. The case is on appeal, but her lawyer concedes it has been all but impossible to overcome the FBI’s position that her case — if it went to trial — could jeopardize national security.

Chiang’s boss — the security leak — was John J. Smith, who had a long running extra-marital affair with confidential informant Katrina M. Leung. For past discussion of the Smith-Leung affair and its connection with polygraph policy, see Ex-FBI Agent and Informant Accused in Spy Case.

To this day, Chiang says she has never seen the evidence that triggered her suspension, not even the results of a failed polygraph test that apparently provided the first suspicion that she was a mole.

During her 10-month suspension, Chiang said she was uncertain why she had been whisked from the bureau that day.

“It was torturous. I lost 20 pounds. I had to seek counseling to make sure I wasn’t going to do something stupid to myself,” Chiang, 53, said during a recent interview. “They took me back, but it wiped out my whole career. I’m ruined in terms of my identity as an FBI agent and professional.”

Chiang’s story is virtually unknown outside the covert world she traveled in, and her fight for justice became a mere detail in one of the biggest sex-and-spy scandals to rock the FBI.

But her discrimination lawsuit offers a rare glimpse into the inner workings of the Los Angeles China Squad during one of the FBI’s lowest moments.

Information gleaned from the 2005 lawsuit and an FBI inspector general’s report filed the following year shows that Chiang popped into the bureau’s cross hairs in the summer of 2001, when the FBI began looking into reports that Chinese intelligence had infiltrated the China Squad. The unit is a special team that keeps tabs on Chinese spies and their attempts to steal U.S. technology.

A subsequent investigation identified Chiang’s boss, squad leader James J. Smith, as the security risk. Katrina Leung, a Chinese American described in the inspector general’s report as Smith’s informant and lover and a spy for the People’s Republic of China, was also exposed.

Chiang returned to her job in November 2002 but with several caveats, including that her computer use would be monitored, Chiang said. Court records show that she worked under a “risk mitigation” plan, because, FBI officials said, she “probably harbors significant resentment for the process she has been through.”

The price of the investigation was steep: Though cleared, she was viewed with even deeper suspicion. “They said I was a bigger security risk because now I had a grudge against the bureau,” said Chiang.

She retired in 2006 after a 21-year career.

Chiang believes she came under suspicion because she is Chinese American. “That’s the only explanation I can derive from self-examination and review.”

But Mueller, in a statement filed with the court, said it was the polygraph test, not ethnicity, that led to her suspension. FBI officials declined to comment.

Let all FBI employees then be put on notice that they may be arbitrarily suspended merely because their polygraph squiggles zigged when they should have zagged. A leaflet produced by the FBI Polygraph Unit about its “Personnel Security Polygraph Program” states regarding the rights of those who fail the polygraph:

Q: If it is determined that I have failed my polygraph, what recourse do I have?
A: The SPM or other appropriate officials within the Counterintelligence Division will conduct a review or investigation to explain your polygraph test results. A Senior Review Panel (SRP) composed of the Assistant Directors or their designees from your division, the Counterintelligence Division, the Office of Professional Responsibility, and the Administrative Services Division will monitor the equity and reasonableness of the PSP process. The General Counsel or his designee will participate on the panel as a legal advisor. The SRP will also reserve the right to invite representatives of other FBI components, as appropriate, to provide counsel. The SRP will consider both the requirement to safeguard national security and the rights of those taking the test.

Given Chiang’s experience, it would seem that the foregoing is little more than bureaucratic mumbo jumbo and that FBI employees who fail the polygraph have no recourse. Reporter H.G. Reza continues:

Government attorneys argued that Mueller acted legally and for national security reasons when he suspended Chiang while the FBI attempted to “locate a suspected mole.” A U.S. District Court judge in Los Angeles dismissed the suit, ruling that she could not sue the FBI because federal law prevents employees from challenging an employment action taken for national security reasons.

Getting a job as an FBI agent was not easy for someone born in Taiwan. Chiang’s family settled in South San Francisco after her father retired as a Taiwanese diplomat. She was hired in 1984 after becoming a U.S. citizen and undergoing an extensive background check.

“She’s a recruiter’s dream,” said retired FBI Agent Chris Loo, who recruited Chiang. “She’s sharp, analytical and speaks Cantonese and Mandarin. Rita was no ordinary agent.” Loo said she was the FBI’s first female Chinese American agent.

Jo Craycraft, a retired FBI agent who also worked in counterintelligence in Los Angeles, said she never doubted Chiang’s honesty and loyalty.

“Without resorting to exaggeration, Rita is a great agent. She was an excellent mentor for me and for her squad,” Craycraft said. “She didn’t have very many equals.”

According to court records, Chiang received “the highest annual performance rating possible,” even while she was on suspension.

Mueller’s statement, dated March 31, 2004, said he suspended her because she failed the polygraph test, in which she was asked if she had ever spied against the United States. He said the suspension was also based on his personal “knowledge of other specific national security risk and vulnerability factors,” which he did not list.

In a signed statement included in court documents, one of her supervisors said Chiang probably would not have failed the polygraph had it been administered by an examiner experienced in conducting National Security Division exams. Agent Daniel K. Sayner went on to note, “I believe that Chiang was discriminated against because of her ethnicity.”

Polygraphy is voodoo science regardless of who conducts administers the procedure. As the National Academy of Sciences more diplomatically put it, “[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.”

According to court records and the FBI inspector general’s report, it appears FBI officials in Washington feared that Chiang might be providing information to Leung, the suspected spy.

The inspector general’s report released in May 2006 said authorities believed Leung had a secret contact in the China Squad. Suspicions about Leung, who earned $1.7 million as an informant, surfaced as far back as 1987, five years after Smith became her handler. Concerns about Leung’s loyalty continued for more than a decade.

For reasons not explained in the report, 14 years after the first red flag went up, the FBI finally began investigating Leung. A “special squad” from the Los Angeles office led the investigation, and each member was required to pass a polygraph test.

Chiang believed she had been tapped for a role in the investigation because she was asked in August 2001 to take a polygraph examination. A 2003 affidavit by Agent John J. Quattrocki, then head of counterintelligence programs for the National Security Council, suggests that the FBI had no reason to believe Chiang would have “a problematic polygraph.” Quattrocki called her “a very good agent” who “would be the best person to conduct the investigation.”

But she apparently failed the polygraph, and FBI officials began investigating her too. Quattrocki and Sayner said in affidavits that they expected Chiang would remain at work while under investigation. Quattrocki said he was “shocked” when Mueller ordered her suspended.

On Feb. 13, 2002, barely a month after Chiang’s suspension, FBI officials in Los Angeles recommended that she be immediately reinstated, her attorney, Marvin L. Rudnick, said. The attorney said the recommendation turned up in a classified report Chiang found in her personnel file, which she obtained through a Freedom of Information Act request.

But it was an additional nine months before she was reinstated.

Rudnick charged that Mueller invoked national security in Chiang’s case to protect the FBI from liability.

“Mueller used national security to hide behind a discriminatory action. A mistake was made he knew the FBI would pay for, and the only way he could get immunity was by saying it was a national security matter,” Rudnick said.

Sayner, who supervised Chiang, said in his statement, “I cannot understand why the bureau treats people the way Chiang was treated when the bureau has a need for a specific expertise.”

There was a final irony that troubled Chiang: Smith and Leung got off relatively easy, though they compromised national security.

Leung pleaded guilty to lying about the affair and filing a false income tax return. She was fined $10,000 and put on three years’ probation. She had been charged with illegally copying and possessing classified documents, but the case was dismissed because of prosecutorial misconduct. Leung spent three months in jail after her arrest on this charge.

In 2005, Smith also pleaded guilty to lying about his affair with Leung and was sentenced to three months’ house arrest and three years’ probation and fined $10,000.

“Smith got three months’ house arrest. I spent 10 months at home with restrictions,” Chiang said. “Smith went on with his life. My life and career were ruined.”

It’s time for the FBI to wake up to the fact that polygraph “testing” is a pseudoscientific sham.

New Orleans Times-Picayune staff writer Kate Moran reports that a former prostitute who claims to have been patronized by U.S. Senator David Vitter (R-LA) has passed a lie detector test paid for by pornographer Larry Flynt and administered by polygrapher Edward Gelb of Los Angeles. It should be noted that Gelb was exposed by AntiPolygraph.org as a phony Ph.D. some four years ago. Moran writes:

Weeks after U.S. Sen. David Vitter tried to discredit her allegations, a woman who used to work as a prostitute in New Orleans passed a lie detector test averring that she had a “sexual relationship” with Vitter that lasted at least four months.

Magazine publisher Larry Flynt paid for the woman to take the polygraph test, and he plans to hold a news conference with her at his Beverly Hills office today to unveil the results and challenge the senator to submit to a polygraph.

This will make for great political theater, but polygraph results are evidence of nothing. There is broad consensus amongst scientists that polygraphy has no scientific basis. In addition, liars can easily pass the polygraph using simple, readily available countermeasures. Whether or not he’s being truthful in this matter, Senator Vitter would be well advised to steer clear of Flynt’s polygraph challenge.

The woman, Wendy Yow Ellis, claims that she had intercourse with Vitter in a French Quarter apartment at Dauphine and Dumaine streets in 1999, the year the Metairie Republican was elected to Congress.

Ellis, whose maiden name is Wendy Yow, said Monday that she took the polygraph test because Vitter tried to impugn her credibility at a news conference in July, when he denied news reports about his involvement with prostitutes in New Orleans without being specific.

“I have been called a liar all of my life,” Ellis said. “This is one time that you can’t call me a liar. I have admitted my wrongs. I am not proud of myself for my past, but my integrity and my self-respect mean more to me today than anything.”

Flynt paid for Ellis to fly to California to take the polygraph, which was administered by Edward Gelb, a past president of the American Polygraph Association who also gave lie detector tests to the parents of JonBenet Ramsey, the child beauty queen who was found murdered in her family’s basement in 1996.

Flynt also plans to pay Ellis for divulging details of her assignations with Vitter. Those will be published in the February or March issue of Hustler, according to Mark Johnson, the magazine’s assistant managing editor and research director.

While Johnson would not say how much money Ellis could make off the deal, he said Hustler required the lie detector test to verify her story before moving forward with a contract.

‘You have to define sex’

Vitter’s press secretary refused to comment about the lie detector test Monday.

“Sen. Vitter and his wife have addressed all of this very directly,” Joel DiGrado’s statement said. “The senator is focused on important Louisiana priorities like the water resources bill and the Iraq debate.”

Gelb, the polygraph expert, asked Ellis whether she had a “sexual relationship” with Vitter through an outfit called the New Orleans Escort Service. He then asked if the relationship continued for at least four months. The polygraph showed there was “no deception intended” in her answers.

Before he gave Ellis the test, Gelb said he clarified with her that “sexual relationship” meant intercourse. Although he asked her other questions to establish a baseline for evaluating her answers, Gelb said he did not ask her any details about the relationship.

“A single-issue test is the most accurate type of polygraph test. You go to the bottom line. You do not ask whether it was in an apartment or a house, whether it was on Monday or Tuesday, unless that is germane to the bottom line,” Gelb said. “The bottom line here is that she did have sex — and you have to define sex, or you run into the problem of someone in public office discussing what the words all mean.”

During a phone interview Monday, Ellis said she met regularly with Vitter in the French Quarter apartment and that he paid her through her pimp, Jonathan, whose last name she did not know. She said Vitter met her through the New Orleans Escort Service, not through the madam whose notorious Canal Street brothel was raided by federal agents in 2001.

Although that madam, Jeanette Maier, claimed in interviews that Vitter patronized her brothel and favored a prostitute named Wendy, Ellis said Monday that she has never met Maier.

“Never had, never will, don’t care to,” she said.

Ellis said she and Vitter had safe sex and that he did not have any unusual proclivities. She said he paid $300 an hour for her services.

“He was a very clean man,” Ellis said. “He came in, took a shower, did his business and would leave.”

Apology for ‘sin’

Allegations about Vitter’s entanglement with call girls first came to light in July, when Flynt unearthed his phone number in the records of a escort service in Washington, D.C. When that news broke, Maier came forward and claimed the senator used to visit her Canal Street brothel.

That same week, Ellis spoke to The Times-Picayune and claimed that Vitter had been a regular client of hers in 1999. She has gone by several aliases over the years, and the newspaper used her Social Security number, interviews with family members and acquaintances, and public records from several states to establish her identity.

She sometimes worked under the name Wendy Cortez. An ex-boyfriend, Tait Cortez, said he and Ellis broke up after he found a provocative photo of her with Vitter, but Ellis said Monday that no photos exist. Vitter was very careful and the two never appeared together in public, she said.

Ellis’ first husband confirmed that her maiden name is Wendy Yow. Her legal name became Wendy LeeAnn Yow Ellis after she married Brannon Ellis, who is now dead.

After Maier and Ellis each claimed Vitter as a client, the senator and his wife held a news conference in which Vitter apologized a second time for the Washington allegations but denied “those New Orleans stories.” He did not specify which of the stories he was referring to and made a hasty exit without taking questions from reporters.

Vitter previously had apologized for a “very serious sin in my past” in connection with the Washington allegations.

For her part, Ellis said she took the polygraph test because it irks her that people who saw Vitter’s denial in the newspaper might see her as “a two-bit whore when I’m the one telling the truth.”

Polygraph disputes

State and federal courts do not consider polygraph tests reliable enough to be used as evidence in criminal trials, but several experts said Monday that police and the FBI use them during investigations.

“In general, polygraph test results are not admissible at trial. That is because the courts generally find the science behind the polygraph techniques not to be reliable,” said Jancy Hoeffel, an associate professor at Tulane Law School, who said attorneys nonetheless use them in pretrial hearings or to cut deals for their clients.

While Hoeffel said people fail lie detector tests for many reasons — a certain word might trigger a response — she said it is difficult for people to feign telling the truth.

“Experts in the field generally agree that results where a person has passed are more reliable than where they say a person has failed,” Hoeffel said. “You can fail a test for all kinds of innocent reasons, but to pass one is much harder. As it happens, many lawyers find them very persuasive.”

The argument that false negatives (a deceptive person passing) are less common than false positives (a truthful person failing) only applies in the absence of countermeasures. One doesn’t need to be a psychopath or somehow believe one’s own lies to fool the polygraph. See Chapter 4 of The Lie Behind the Lie Detector (1 mb PDF) for a detailed explanation of how anyone can fool the polygraph.

Gelb, the polygraph expert who gave the test to Ellis, said it measures changes in pulse, blood pressure, breathing rates and other bodily changes that might indicate people are fearful their lie will be detected.

But such bodily changes are not uniquely associated with deception. They may result from a variety of factors such as fear of the consequences of not being believed, anger, embarrassment at the question asked. And such responses can be manufactured at will by those seeking to manipulate the outcome of a polygraph “test.”

Sonja Bjelland reports for the Inland Southern California Press Enterprise in “Lawyer says polygraph clears ex-Riverside cop of Iraq killings.” Excerpt:

A former Riverside police officer accused of killing two detainees while on duty as a Marine in Iraq passed a polygraph test in which he asserted that he had never been involved in a serious crime.

While supporters of Jose Luis Nazario Jr. say the test exonerates him of the federal voluntary manslaughter charges he faces, polygraph experts say the examination proves nothing because the questions were too vague.

Polygraph results are rarely used in court. In federal court, it is up to the discretion of the judge whether to admit such results as evidence.

The polygraph results were released as conflicting information about the case involving the killings after a firefight in Fallujah continues to be made public.

In the next few weeks, a federal grand jury will decide whether to indict Nazario. He has not yet entered a plea and it is unclear when any trial might begin.

Federal authorities declined to speak about the case, saying it is still under investigation.

Nazario took the polygraph as part of the hiring process at the Riverside Police Department, said attorney Emery Brett Ledger, who released the polygraph documents. Nazario took another polygraph for the Riverside County Sheriff’s Department and passed.

A question typical of such polygraphs, according to experts, was the one used by Riverside police: “Since your 18th birthday, have you committed a serious or undetected felony crime?”

The results stated “no deception is indicated.”

Los Angeles-based polygraph expert Edward Gelb said that the employment-screening polygraphs do not have the same accuracy as when a questioner asks about a single incident.

“It’s all about how you ask the right question,” Gelb said.

When asking about details in a specific crime, the polygraph can be right 91 percent of the time, Gelb said. But employment-screening polygraphs ask fewer questions and do not inquire about one specific incident.

Nazario’s police polygraphs are not the only ones at issue in this case.

Military author Nathaniel Helms said the investigation of Nazario stemmed from a polygraph test taken by a fellow Marine for a Secret Service job.

Helms said that information comes from an interview he conducted with Cpl. Ryan Weemer while researching a book, “My Men Are My Heroes: The Brad Kasal Story,” about the war in Iraq.

Helms also spoke to many of Weemer’s squad mates and said none of them mentioned witnessing any war crimes. But Weemer’s attorney, Paul Hackett, said that although Weemer applied for a Secret Service job, he never took a polygraph test.

For discussion of the Nazario case, see Ex-Marine and Cop Jose Nazario, Charged With Eight Killings, Passed LAPD and Riverside P.D. Pre-Employment Polygraph Examinations.