The San Diego division of the U.S Drug Enforcement Administration allegedly conducted illegal polygraph tests on contracted employees, according to a federal lawsuit filed by 10 translators in U.S. District Court.
The translators were all employed by Metropolitan Interpreters & Translators, or MetLang for short, a private firm that provided $38 million in language services to the federal government in 2011, according USASpending.gov. In San Diego, MetLang’s employees translate wiretaps related to investigations conducted by the DEA and U.S. Immigration and Customs Enforcement. Last summer, the company informed its San Diego staff, many of whom had worked for the company for years, that they would be required to undergo DEA-administered lie-detector examinations.
“The manner in which the polygraphs were conducted in this case was highly unreliable and entirely insensitive— brutal, in fact,” says attorney Eugene Iredale, whose firm represents the translators. “[It] suggests to me that this was a classic witch hunt.”
MetLang is currently the only party named in the lawsuit, but Iredale expects to add the DEA to the case once the defendants have exhausted the complaints process.
“What we believe is there was some kind of alleged security breach by a person who was not involved in this case and whose identity we don’t know,” Iredale says. “I think what occurred in this case is the DEA reacted in a semi-hysterical way… and the company that participated in the violation of the statute would do anything to keep their DEA contracts and didn’t mind chopping off the heads of 10 employees.”
Amy Roderick, spokesperson for the DEA in San Diego, declined to comment due to the pending litigation. Lawyers for MetLang similarly declined to comment.
American Polygraph Association members CityBeat spoke to describe the polygraph as an instrument that records and measures three different types of physiological responses— usually sweat-gland activity, breathing and blood pressure and heart rate—over the course of controlled questioning. A typical examination lasts about an hour-and-a-half, though longer tests are not unusual. Subjects are briefed in advance and given the chance to explain inconsistencies after the test is completed.
In 1988, Congress passed the bipartisan Employee Polygraph Protection Act (EPPA) in response to growing use of lie detectors by employers in the hiring—and firing—process.
“A number of members of Congress were receiving complaints from their constituents about having been polygraphed,” Pat Williams, the former nine-term Democratic representative from Montana who sponsored the legislation, says in a telephone interview. “The complaints usually centered around questions that people thought were too personal, questions about their personal lives that people thought were invasive, and also doubts about the validity of the tests themselves.”
The bill, supported by the American Civil Liberties Union and organized labor, essentially banned the use of polygraphs in the private sector, except in cases of suspected theft or fraud or if the business is involved in private security or handling controlled substances. In those cases, polygraphers are forbidden from asking questions about the subject’s political or religious beliefs or sexual behaviors. The subjects must also be given adequate notice. As part of the law, private employers are required to post notices alerting workers of their rights when it comes to polygraphs.
“There was no question in our mind and the mind of a majority of the members of Congress that the use of polygraphs was growing substantially in the private sector and that many, if not most, of the tests were being administered in an unreliable manner,” Williams says. “We believed the polygraph was being used inappropriately to deny certain people employment and to fire others without due cause.”
Government agencies are exempt from EPPA, but government contractors such as MetLang fall into a gray area. In crafting the law, Congress decided to allow certain agencies engaged in national security to use polygraphs on contractors—specifically the Federal Bureau of Investigation, the National Security Administration, the Defense Intelligence Agency, the Central Intelligence Agency and the National Geospatial-Intelligence Agency. The Department of Energy is also allowed to use polygraphs on contractors who work on atomic-energy defense.
“We didn’t want to impede the use of lie detector by a handful of federal agencies that dealt with national security, because it had been aptly demonstrated that those agencies, in their previous use of polygraphs, did not rely exclusively on those results, but rather used many other screening devices as well,” Williams says.
The DEA was not among them. The agency can use polygraphs only if the contractor is working with information classified as “top secret” or “special access” at the top levels of the government. Iredale says the translators’ work did not fall into these categories.
“What I can say with certainty and specificity is that the access to the material that they had is called ‘law-enforcement sensitive,’ and it is not classified information,” he says. “While there is no question that it is information that is sensitive and should be kept confidential during the course of an investigation, by no means is it the kind of top-secret, special national-security, highly classified information which is involved in the statutory exclusions.”
But even in the intelligence community, polygraphs are controversial. At the end of July, Sen. Charles Grassley, a Republican representing Iowa, called for an investigation of the National Reconnaissance Office after McClatchy Newspapers reported on aggressive, overly personal polygraphs.
Nate Gordon, director of the Academy for Scientific Investigative Training and past president of the American Polygraph Association, says there are two typical tests an intelligence or law-enforcement agency may use on employees. Sometimes they are conducted back-to-back, which could explain why the DEA tests lasted four hours. An agency may be trying to ascertain whether the worker has had contact with a foreign agent, Gordon says. Alternately, the agency may be investigating an employee’s lifestyle to confirm that the worker is not at risk for blackmail. That’s where a question about an employee’s sexual proclivities, infidelities or financial problems would figure in. As for the question about bestiality—that’s a new one.
“It’s not something we would use,” Gordon says. “We might talk about unusual sexual activity as part of an overview…. I think the major concern is, ‘Have you done something sexually that someone could use against you?’”
According to lawyer Mike Brittan, who co-wrote a paper on EPPA in 2009 for the Privacy & Data Security Law Journal, there’s little case law and few legal precedents to draw from in this area of law because EPPA virtually ended the practice of workplace polygraphs. Consequently, his experience with EPPA mostly involves helping his business clients craft polygraph policies. The way he reads the law, Brittan finds MetLang’s decision to facilitate the polygraphs inadvisable at best.
“Even if [MetLang] can claim it’s subject to the exemptions… they didn’t follow the procedures for administering the tests,” Brittan says. “I think [MetLang] has some serious problems that need to be addressed.”