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10 U.S. Code § 1564a - Counterintelligence polygraph program

(a) Authority for Program.—
The Secretary of Defense may carry out a program for the administration of counterintelligence polygraph examinations to persons described in subsection (b). The program shall be conducted in accordance with the standards specified in subsection (e).
(b) Persons Covered.—Except as provided in subsection (d), the following persons are subject to this section:
(1) With respect to persons whose duties are described in subsection (c)—
(A)
military and civilian personnel of the Department of Defense;
(B)
personnel of defense contractors;
(C)
persons assigned or detailed to the Department of Defense; and
(D)
applicants for a position in the Department of Defense.
(2) A person who is—
(A)
a national of the United States (as such term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)) and also a national of a foreign state; and
(B) either—
(i)
a civilian employee or contractor who requires access to classified information; or
(ii)
a member of the armed forces who requires access to classified information.
(c) Covered Types of Duties.—The Secretary of Defense may provide, under standards established by the Secretary, that a person described in subsection (b)(1) is subject to this section if that person’s duties involve—
(1) access to information that—
(A)
has been classified at the level of top secret; or
(B)
is designated as being within a special access program under section 4.4(a) of Executive Order No. 12958 (or a successor Executive order); or
(2) assistance in an intelligence or military mission in a case in which the unauthorized disclosure or manipulation of information, as determined under standards established by the Secretary of Defense, could reasonably be expected to—
(A)
jeopardize human life or safety;
(B)
result in the loss of unique or uniquely productive intelligence sources or methods vital to United States security; or
(C)
compromise technologies, operational plans, or security procedures vital to the strategic advantage of the United States and its allies.
(d) Exceptions From Coverage for Certain Intelligence Agencies and Functions.—This section does not apply to the following persons:
(1)
A person assigned or detailed to the Central Intelligence Agency or to an expert or consultant under a contract with the Central Intelligence Agency.
(2) A person who is—
(A)
employed by or assigned or detailed to the National Security Agency;
(B)
an expert or consultant under contract to the National Security Agency;
(C)
an employee of a contractor of the National Security Agency; or
(D)
a person applying for a position in the National Security Agency.
(3)
A person assigned to a space where sensitive cryptographic information is produced, processed, or stored.
(4)
A person employed by, or assigned or detailed to, an office within the Department of Defense for the collection of specialized national foreign intelligence through reconnaissance programs or a contractor of such an office.
(e) Standards.—
(1)
Polygraph examinations conducted under this section shall comply with all applicable laws and regulations.
(2) Such examinations may be authorized for any of the following purposes:
(A)
To assist in determining the initial eligibility for duties described in subsection (c) of, and aperiodically thereafter, on a random basis, to assist in determining the continued eligibility of, persons described in subsections (b)(1) and (c).
(B) With the consent of, or upon the request of, the examinee, to—
(i)
resolve serious credible derogatory information developed in connection with a personnel security investigation; or
(ii)
exculpate him- or herself of allegations or evidence arising in the course of a counterintelligence or personnel security investigation.
(C)
To assist, in a limited number of cases when operational exigencies require the immediate use of a person’s services before the completion of a personnel security investigation, in determining the interim eligibility for duties described in subsection (c) of the person.
(D)
With respect to persons described in subsection (b)(2), to assist in assessing any counterintelligence threats identified in an authorized investigation of foreign preference or foreign influence risks, as described in part 147 of title 32, Code of Federal Regulations, or such successor regulations.
(3) Polygraph examinations conducted under this section shall provide adequate safeguards, prescribed by the Secretary of Defense, for the protection of the rights and privacy of persons subject to this section under subsection (b) who are considered for or administered polygraph examinations under this section. Such safeguards shall include the following:
(A)
The examinee shall receive timely notification of the examination and its intended purpose and may only be given the examination with the consent of the examinee.
(B)
The examinee shall be advised of the examinee’s right to consult with legal counsel.
(C)
All questions asked concerning the matter at issue, other than technical questions necessary to the polygraph technique, must have a relevance to the subject of the inquiry.
(f) Oversight.—
(1)
The Secretary shall establish a process to monitor responsible and effective application of polygraph examinations within the Department of Defense.
(2)
The Secretary shall make information on the use of polygraphs within the Department of Defense available to the congressional defense committees.
(g) Polygraph Research Program.—The Secretary shall carry out a continuing research program to support the polygraph examination activities of the Department of Defense. The program shall include the following:
(1)
An on-going evaluation of the validity of polygraph techniques used by the Department.
(2)
Research on polygraph countermeasures and anti-countermeasures.
(3)
Developmental research on polygraph techniques, instrumentation, and analytic methods.
(Added Pub. L. 108–136, div. A, title X, § 1041(a)(1), Nov. 24, 2003, 117 Stat. 1607; amended Pub. L. 109–163, div. A, title X, § 1054(a), Jan. 6, 2006, 119 Stat. 3436; Pub. L. 115–232, div. A, title XVI, § 1623(a)–(c), Aug. 13, 2018, 132 Stat. 2119.)
Editorial Notes
References in Text

Executive Order No. 12958, referred to in subsec. (c)(1)(B), which was formerly set out as a note under section 435 (now section 3161) of Title 50, War and National Defense, was revoked by Ex. Ord. No. 13526, § 6.2(g), Dec. 29, 2009, 75 F.R. 731.

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 100–180, title XI, § 1121, Dec. 4, 1987, 101 Stat. 1147, as amended, which was set out as a note under section 113 of this title, prior to repeal by Pub. L. 108–136, div. A, title X, § 1041(b), Nov. 24, 2003, 117 Stat. 1608.

Amendments

2018—Subsec. (b). Pub. L. 115–232, § 1623(a), amended subsec. (b) generally. Prior to amendment, text read as follows: “Except as provided in subsection (d), the following persons, if their duties are described in subsection (c), are subject to this section:

“(1) Military and civilian personnel of the Department of Defense.

“(2) Personnel of defense contractors.

“(3) A person assigned or detailed to the Department of Defense.

“(4) An applicant for a position in the Department of Defense.”

Subsec. (c). Pub. L. 115–232, § 1623(c)(1), substituted “subsection (b)(1)” for “subsection (b)” in introductory provisions.

Subsec. (e)(2)(A). Pub. L. 115–232, § 1623(c)(2), substituted “subsections (b)(1) and (c)” for “subsections (b) and (c)”.

Subsec. (e)(2)(D). Pub. L. 115–232, § 1623(b), added subpar. (D).

2006—Pub. L. 109–163 reenacted section catchline without change and amended text generally. Prior to amendment, section related to authority for program for administration of counterintelligence polygraph examinations in subsec. (a), persons covered in subsec. (b), exceptions from coverage for certain intelligence agencies and functions in subsec. (c), oversight in subsec. (d), and polygraph research program in subsec. (e).

Statutory Notes and Related Subsidiaries
Effective Date of 2006 Amendment

Pub. L. 109–163, div. A, title X, § 1054(b), Jan. 6, 2006, 119 Stat. 3438, provided that:

“The amendment made by subsection (a) [amending this section] shall apply with respect to polygraph examinations administered beginning on the date of the enactment of this Act [Jan. 6, 2006].”
Construction

Pub. L. 115–232, div. A, title XVI, § 1623(d), Aug. 13, 2018, 132 Stat. 2119, provided that:

“Nothing in section 1564a of title 10, United States Code, as amended by this section, shall be construed to prohibit the granting of a security clearance to persons described in subsection (b)(2) of such section absent information relevant to the adjudication process, as described in part 147 of title 32, Code of Federal Regulations, or such successor regulations.”