Stehney v. Perry

• Decision Date: 06 November 1995
• Docket Number: Civ. No. 94-6306 (GEB).
• Citation: 907 F. Supp. 806
• Parties: Ann K. STEHNEY, Plaintiff, v. William J. PERRY et al., Defendants.
• Court: U.S. District Court — District of New Jersey

907 F. Supp. 806

Ann K. STEHNEY, Plaintiff, v. William J. PERRY et al., Defendants.

Civ. No. 94-6306 (GEB).

United States District Court, D. New Jersey.

November 6, 1995.

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Frank Askin, Constitutional Litigation Clinic, Rutgers Law School, Newark, NJ, for Ann K. Stehney.

Peter Robbins, U.S. Department of Justice, Washington, DC, for William J. Perry, J. Michael McConnell, Lee Hanna, and Jeanne Zimmer.

Gerard H. Hanson, Hill Wallack, Princeton, NJ, for The Institute for Defense Analyses, Center for Communications Research, David M. Goldschmidt.

MEMORANDUM OPINION

BROWN, District Judge.

This matter comes before the Court on the motion of federal defendants, William J. Perry, Secretary of Defense, J. Michael McConnell, Director, National Security Agency/Central Security Service ("NSA"), Lee Hanna, Chief of Management Services for NSA, Jeanne Zimmer, current Chief of Management Services for NSA, to dismiss plaintiff's complaint pursuant to FED.R.CIV.P. 12(b)(1) & (6), and on the motion of nonfederal defendants, The Institute for Defense Analysis, Center for Communications Research ("IDA/CCR"), and David M. Goldschmidt, Director of IDA/CCR, for summary judgment pursuant to FED.R.CIV.P. 56. For the reasons set forth in this Memorandum Opinion, this Court will grant federal defendants' motion to dismiss Counts I through V of the Complaint. Further, this Court will deny nonfederal defendants' motion for summary judgment pursuant to FED.R.CIV.P. 56 and, instead, will dismiss Count VI of the Complaint pursuant to 28 U.S.C. § 1367.

I. BACKGROUND

A. The Polygraph Policy

NSA is an agency within the Department of Defense ("D.O.D.") charged with protecting and gathering sensitive information relating to national security. See 50 U.S.C.A. § 402. IDA/CCR, a nonprofit "think tank" located in Princeton, New Jersey, assists NSA by performing extremely sensitive research in cryptology—the making and breaking of codes and other secure communications. Compl. ¶ 4. To conduct this research, IDA/CCR employees must have access to top-secret classified information, "the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security." Executive Order ("E.O.") 12356, § 1.1(a)(1); 3 C.F.R. 174 (1983). Because this material is "particularly sensitive information" pertaining to intelligence activities and "intelligence sources or methods," it is restricted to a "special access program," E.O. 12356, § 4.2, known as "Sensitive Compartmented Information" ("SCI").

Access to SCI may be granted only after "a determination of trustworthiness has been made by agency heads or designated officials." Id. § 4.1(a). This judgment is intended to be "an overall common sense determination," see Director of Central Intelligence Directive No. 1/14 ("DCID No. 1/14") Annex A at 9 (Jan. 22, 1992), annexed to Declaration of Paul W. Naper ("Naper Dec.") as Exh. A1, made after a "thorough" background investigation "designed to develop information as to whether the individual clearly meets the SCI personnel standards." Id. ¶ 7.a. at 3. The background investigation includes "records checks and personal interviews of various sources by trained investigative personnel," id. ¶ 7.b. at 3, in the aid of which the subject is required to furnish fingerprints, and a personal-history statement delving into the subject's personal life. Id. ¶ 7.c. at 3. The subject is also required to sign releases, "as necessary," of "police, credit, financial, education, and medical records," and may be required to provide photographs of herself. Id. In all cases, at least one interview of the subject is required, and "an additional personal interview will be conducted when necessary to resolve any significant adverse information and/or inconsistencies developed during the investigation." Id. ¶ 8.d. at 4.

Reinvestigations to determine continued eligibility for access to classified information must be conducted at least once every 5 years. Id. ¶ 10.a. at 5. To facilitate the reinvestigation, the subject must furnish an updated personal history statement and sign appropriate releases. Id. ¶ 10.b. at 5-6. "In all cases," the reinvestigation requires a "personal interview" addressing such matters as foreign assignments, connections and associations; approaches by foreign intelligence agencies; unreported breaches of security procedures; drug use; and criminal activities. Id.

Since 1953, NSA has conducted all security-clearance interviews of agency employees with the aid of a polygraph. Department of Defense, The Accuracy and Utility of Polygraph Testing 11, annexed to Naper Dec. at Exh. A12. When IDA/CCR was created in 1959, however, D.O.D. allowed an exception for professional employees. See Memorandum of Louis J. Bonanni, Deputy Director for Administration at 1 (Dec. 11, 1980), annexed to Naper Dec. as Exh. A6. Non-professional employees, including administrators, clerical workers and security personnel, were required to undergo polygraphs. Id.

D.O.D. reversed this policy in 1982, however, and authorized the use of polygraph interviews on an aperiodic basis, and in connection with security-clearance reinvestigations, for all personnel with access to SCI, including all contract employees. Periodic Reinvestigation Procedures for Individuals Cleared for Access to Sensitive Compartmented Information (SCI), Att. 1 at 1-2 to Memorandum of Frank Carlucci (Aug. 6, 1982), annexed to Naper Dec. as Exh. A7. One month later, NSA issued a directive that all "civilian, military and contractor personnel cleared for access to NSA SCI shall be requested to take polygraph examinations on an aperiodic basis at any time after their initial clearance," Memorandum of Lincoln D. Faurer at 1 (Sept. 27, 1982), annexed to Naper Dec. as Exh. A8, and IDA/CCR was instructed to inform its employees that the policy would go into effect on March 7, 1983. Letter of Philip T. Pease at 1 (Feb. 4, 1983), annexed to Naper Dec. as Exh. A9. The first use of the polygraph interview for professional personnel began on August 5, 1983. Memorandum of Louis J. Bonanni at 1 (Aug. 5, 1983), annexed to Naper Dec. as Exh. A10.

B. The Polygraph

The polygraph measures changes in blood pressure, pulse, respiration, muscular activity and electrodermal activity (perspiration on fingertips) in reaction to the questions asked during the interview. See JOHN E. REID & FRED E. INBAU, TRUTH AND DECEPTION 4 (1966). These patterns are simultaneously recorded on pen registers while the subject wears a pressure cuff on her arm, a light tube across her chest and abdomen, and painless electrodes on two fingertips. Id. at 4-5. The changes provide subtle indications of "stress or anxiety," Anderson v. Philadelphia, 845 F.2d 1216, 1218 (3d Cir.1988), that might not otherwise be apparent to the interviewer. The theory of lie detection can be summarized as follows: the act of lying leads to conscious conflict; conflict induces fear or anxiety, which in turn results in clearly measurable physiological change. M.J. SAKS & R. HASTIE, SOCIAL PSYCHOLOGY IN COURT 192 (1978).

Polygraph examinations are intended to be "supplementary to, not ... a substitute for, other forms of investigation." D.O.D. Directive No. 5210.48, ¶ 6 at 2, annexed to Naper Dec. as Exh. A4; D.O.D. Reg. No. 5210.48-R, Ch. 1, ¶ A.5 at 1-1, annexed to Naper Dec. as Exh. A5. The results of the polygraph chart are "used during the security interview as an investigative tool with which to gather leads, encourage relevant disclosures, and identify areas of questioning that may need further development." See D.O.D. Reg. 5210, ¶ 9 at 3. Therefore, whether favorable or unfavorable, "any final administrative determinations rendered in cases in which a polygraph examination is taken shall not be based on the results of an analysis of the polygraph charts," NSA/CSS Reg. No. 122-3 § III, ¶ 6.a at 4, annexed to Naper Dec. as Exh. A3, but on information gathered independently.

Two types of polygraph interviews are used by the NSA in the background screening process. For an initial clearance, a "full-scope" interview is conducted with respect to the following areas:

(1) verification of the person being interviewed;

(2) counterintelligence questions; and

(3) clarifications or elaborations of information provided on completed security forms or other information pertaining to the person's eligibility for a clearance.

Id. § IV, ¶ 7.a(1)(a)-(c). For aperiodic and reinvestigation examinations, a shorter "counterintelligence ("CI")—scope" interview is used. Id. § III, ¶ 7.b(1). This interview focuses narrowly on

(1) espionage or sabotage activities against the United States;

(2) deliberate damage to any government information system;

(3) deliberate disclosure of classified information to unauthorized persons; and

(4) undisclosed contacts with foreign nationals or representatives.

Memorandum of David H. Schachnovsky at 1 (May 26, 1992), annexed to Naper Dec. as Exh. A11.

Access to SCI "must be clearly consistent with the national security." NSA/CSS Reg. No. 122-06, ¶ 4 at 2, annexed to Naper Dec. as Exh. A2, and "any doubt concerning a person's continued eligibility will be resolved in favor of the national security." Id. ¶ 5 at 3. Because non-cooperation by the subject is an intolerable impediment to completion of the background investigation, "failure to provide required security forms, releases, and other data," or "refusing to undergo the required security processing or medical or psychological testing will normally result in a denial, suspension, or revocation of access to SCI." DCID No. 1/14 Annex A at 14. Specifically, "persons who refuse to take a polygraph examination in connection with determining their continued eligibility for access to specifically designated information in special access programs ... may be denied...