Deference to Deception

Judge Kavanaugh’s ironic history of defending the same polygraphs he now calls unreliable suggests that—if confirmed to the US Supreme Court—he would defer to dishonest executive power.

Following sexual assault allegations against Supreme Court nominee Brett Kavanaugh, President Trump ordered the FBI to conduct a one-week investigation, briefly postponing Kavanaugh’s Senate confirmation vote with the November midterm elections clock ticking. Kavanaugh’s first accuser, Dr. Christine Blasey Ford, told the Senate Judiciary Committee that she passed a lie detector test. Kavanaugh called polygraphs unreliable—noting their inadmissibility in federal court. That’s not what he thought of them when he decided my Freedom of Information Act (FOIA) case requesting polygraph program records.

Writing for the US Court of Appeals, DC Circuit on May 20, 2016, in Sack v. Dept. of Defense (DOD), Kavanaugh upheld the District Court’s ruling that federal polygraph records could be withheld because transparency would cause the specific harm, under the Exemption 7(E) of the Freedom of Information Act (FOIA), of disclosing “techniques and procedures for law enforcement investigations” whose disclosure would reasonably “risk circumvention of the law.” But DOD’s arguments were disingenuous. Scientific consensus for the past ninety years has been that polygraphs are insufficiently evidence-based. It’s no secret that there is no unique physiological lie response to detect. Yet, federal agencies demand most of their polygraph records remain secret, ostensibly because polygraphs are important law enforcement tools.

If the government holds data that would explain this contradiction, making it public would advance science. If the government does not hold data that contradicts long-standing scientific consensus on polygraphs’ unreliability, then withholding data on federal polygraph programs’ bias and efficacy merely perpetuates corruption. Evidence shows polygraphs are prone to bias, fraud, and abuse. Research also shows they can even backfire—apparently increasing police dishonesty. In this context, non-transparency undermines rather than protecting law enforcement.

My National Science Foundation-supported doctoral dissertation and postdoctoral research on bias and corruption in polygraphs and policing led me to file open records requests under FOIA with several federal entities including the CIA, FBI, and DOD, for polygraph program data. These agencies fought transparency and won. Ultimately, they won because Kavanaugh decided in their favor—even though their arguments hinged on the premise that polygraphs promote security. The National Academy of Sciences’ 2003 report on the scientific evidence on polygraphs invalidates this premise.

How ironic that polygraphs should come back to haunt Kavanaugh when, as he says, they’re unreliable. He’s right. Their unreliability in screening jeopardizes national security programs by wrongly implicating many innocent people, while also missing security threats like spies. It undermines due process by wrongly implicating innocent people, like the late death row exoneree Dave Keaton. At the same time, it leads police away from investigating guilty people, and casts untoward doubt on the credibility of honest victims and witnesses. Its continued use makes law enforcement look incompetent, because it’s common knowledge that polygraphs are unreliable. Polygraphs thus damage law enforcement. So it’s weird to protect them just because the government claims—contradicting all publicly available evidence—that the opposite is true.

As a federal appeals court judge, Kavanaugh had a chance to act in the public interest as a member of an independent judiciary—protecting national security and promoting due process by checking executive branch overreach. He blew it, choosing instead to bolster executive power based on lies. Past behavior predicts future behavior, and this holds true for judicial behavior. Thus Kavanaugh would be a bad Supreme Court Justice, because he would undermine judicial independence.

Amidst the spectacacle of sex crime accusations and the partisan refusal to investigate them in due time with due process, Kavanaugh promises—if confirmed—to protect the executive branch rather than balancing it. Many legal experts including Kavanaugh have long agreed that a sitting President cannot be indicted. But Kavanaugh’s historical deference to the executive is more distinctive. A judge who defers to dishonest executive power undermines democracy. That is what Kavanaugh did in my case. It’s an extremely dangerous precedent for the U.S. government as a whole.

To the Senators considering whether to confirm Kavanaugh as a US Supreme Court Justice this week: Consider his history as a judge when you consider his future as a judge. As a federal appeals court judge, Kavanaugh undermined national security while citing it as his reason for letting government secrecy prevent progress in scholarship and accountability in governance. In the present political climate, many fear that President Trump wants to confirm a Supreme Court Justice who will defend him even when he’s wrong—someone who will defend an emperor with no clothes. That’s exactly what Kavanaugh’s history of defending executive secrecy around polygraph programs suggests he would do.

The role of the independent judiciary in the American government is to check and balance the executive and legislative branches. By failing to speak truth to power when DOD lied about the importance of polygraph programs for law enforcement, Kavanaugh showed he won’t fulfill that role. Polygraphs are unreliable. His history with them shows Kavanaugh is, too.