10 U.S.C. § 1564a — Counterintelligence polygraph program

(a) Authority. The Secretary of Defense may run a program to administer counterintelligence polygraph examinations to people covered by subsection (b). The program must follow subsection (e)’s standards. (b) Covered people. Except for subsection (d), this section covers (1) people whose duties are described in subsection (c): (A) Department of Defense military and civilian personnel; (B) defense-contractor personnel; (C) people assigned or detailed to the Department; and (D) applicants for Department positions; and (2) a person who is (A) a United States national, as that term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101), and also a foreign-state national, and (B) either (i) a civilian employee or contractor needing access to classified information or (ii) a service member needing that access. (c) Covered duties. Under standards the Secretary establishes, a person in subsection (b)(1) may be covered if the person’s duties involve (1) access to information classified top secret or designated as part of a special access program under section 4.4(a) of Executive Order 12958 or a successor order; or (2) helping with an intelligence or military mission when unauthorized disclosure or manipulation of information could reasonably be expected, under the Secretary’s standards, to (A) endanger human life or safety, (B) cause 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. This section does not apply to (1) a person assigned or detailed to the Central Intelligence Agency or an expert or consultant under a CIA contract; (2) a person employed by, assigned or detailed to, or a contractor employee of the National Security Agency, an NSA contract expert or consultant, or an NSA job applicant; (3) a person assigned to a space where sensitive cryptographic information is produced, processed, or stored; or (4) a person employed by, assigned or detailed to, an office within the Department of Defense that collects specialized national foreign intelligence through reconnaissance programs, or a contractor of such an office. (e) Standards. (1) Examinations must comply with all applicable laws and regulations. (2) They may be authorized (A) to help decide initial eligibility for subsection (c) duties and, later and randomly at intervals, continued eligibility of people described in subsections (b)(1) and (c); (B) with the examinee’s consent or request, to (i) resolve serious, credible negative information found during a personnel-security investigation or (ii) help the examinee disprove allegations or evidence arising in a counterintelligence or personnel-security investigation; (C) in a limited number of cases requiring immediate service before a personnel-security investigation is complete, to help decide interim eligibility for subsection (c) duties; or (D) for subsection (b)(2) people, to help assess counterintelligence threats found in an authorized investigation of foreign-preference or foreign-influence risks described in part 147 of title 32, Code of Federal Regulations, or successor rules. (3) The Secretary must prescribe safeguards protecting the rights and privacy of covered people considered for or given examinations. They must include: (A) timely notice of the examination and purpose, and the examinee’s consent; (B) advice that the examinee may consult legal counsel; and (C) relevance to the inquiry for every question about the matter, except technical questions needed for the polygraph method. (f) Oversight. The Secretary must establish a process to monitor responsible and effective use of examinations in the Department and must make information about Department polygraph use available to the congressional defense committees. (g) Research. The Secretary must maintain a continuing research program supporting Department polygraph activities. It must include (1) ongoing evaluation of the validity of Department techniques, (2) research on countermeasures and anti-countermeasures, and (3) developmental research on techniques, instruments, and analytical methods.