The Corner

Law & the Courts

The Polygraph Question

Brett Kavanaugh was asked during yesterday’s hearing if he would take a polygraph test. He replied that he would do whatever the Judiciary Committee asked him to, but noted that polygraphs are inadmissible in federal court because they are “unreliable.” That fact is not in dispute, but it generated controversy anyway: A number of journalists and observers pointed to Sack v. Department of Defense, a 2016 case for which Kavanaugh wrote the opinion, as evidence that he had flip-flopped on the issue. Joe Patrice of Above the Law said that Kavanaugh has ruled that “polygraphs can be accepted as gospel,” while the Huffington Post declared that “Brett Kavanaugh Once Said Polygraphs Are A Good Tool.”

Did he? Sack v. DoD was a Freedom of Information Act appeal in which the court considered whether Kathryn Sack, then a Ph.D. student at the University of Virginia, was eligible for reduced fees for FOIA requests she had filed with the DoD. Part of the case involved whether polygraphs are used for by investigators for a law-enforcement purpose. If they were, then information pertaining to polygraphs in the possession of the government could be eligible for a FOIA exemption. As Kavanaugh wrote: “Under Exemption 7(E), the Government must demonstrate (i) that the withheld records or information ‘would disclose techniques and procedures for law enforcement investigations’ and (ii) that their disclosure would reasonably ‘risk circumvention of the law.’ ”

First, his opinion affirmed that “polygraph examinations serve law enforcement purposes.” Note that this is not a claim that they are a valuable tool. It is a descriptive and factual claim: Though polygraphs are not admissible in court, law-enforcement agencies use them to screen job applicants, witnesses, or criminal defendants. Kavanaugh simply found that the government had submitted adequate statements that it uses them for these purposes.

Second, his opinion found that releasing the information related to polygraph tests that was at issue in the case could risk circumvention of the law. He notes that the reports Sack had asked for “identify deficiencies in law enforcement agencies’ polygraph programs,” and therefore that releasing them could allow people “to subvert polygraph examinations.” Where Kavanaugh is alleged to be calling polygraphs a “good tool” or “gospel,” his opinion actually underlines the fact that polygraphs can be manipulated, which is all we need to know about the credibility of this particular charge.

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