How lie detectors exacerbate border problems

The real polycrisis

Probably the least important thing happening in the current immigration policy debate is that H.R. 2 — the border security bill that House Republicans wrote before they decided they didn’t want to work on any immigration reform — contains a provision requiring the Department of Homeland Security to hire additional polygraph examiners. On first read, that provision of the legislation tripped me up. I thought maybe they were concerned that asylum-claimants were lying and we could use polygraphs to smoke them out.

But that’s not it.

The issue, instead, is that before CBP can hire you for a law enforcement position you need to take a polygraph test. And, per this CBP recruiting video, if the results of your polygraph are inconclusive, you need to take a second test to try to pass.

The inclusion of this provision is an important little keyhole into the larger immigration debate, in part because it reveals the big lie at the center of the Republican Party’s positioning on the border. They would like to blame Joe Biden for problems at the southern border. And they think — or rather, Donald Trump thinks — that passing a bipartisan border security bill will make that harder to pull off. So now, on Trump’s orders, they need to pretend to believe that border security could be achieved by magic if only Joe Biden were sufficiently magical. The point about the polygraph provision in H.R. 2 is that this isn’t true. Border security involves actual material resources like border agents who need to be hired and trained. And there are various bottlenecks to hiring and training new border agents, including apparently a shortage of polygraph examiners.

Long story short, I think that Biden was too slow to come around on the need for substantive changes to asylum standards (I wrote about this in March 2021, in September 2022, and in July 2023), but it’s also the case that actual resources are needed. I’m glad that Senate negotiators brought the White House around to the correct conclusion here, and it’s infuriating that Trump and House Republicans now won’t take yes for an answer, but I do think this mostly serves to politically backfire on them as long as people in the media are clear about the clumsy political game they are playing.

But there’s also a specific question here. Why is the government relying so heavily on lie detector tests that most people seem to think don’t work?

The polygraph situation at CBP is weird

As most people know, polygraph results are not admissible in most legal contexts. That’s because they are not considered scientific enough to constitute reliable evidence. Those of us who’ve seen “Anatomy of a Fall” know that in the French legal system you can apparently just introduce whatever kind of hearsay or gossip or passages from someone’s novel that you want (French lawyers confirm this is true) but in the United States that doesn’t fly.

You also might think that a reliable lie detector test would have enormous private sector value.

CBP wants to know whether or not its job candidates are lying in interviews, but don’t a lot of employers want this information? It turns out there is actually a federal law — the Employee Polygraph Protection Act — which bans most private sector employers from requiring polygraphs as a condition of employment. And yet this thing that’s banned in the private sector and considered unreliable by the judiciary, is mandatory at many public sector agencies including the CBP.

This is particularly a huge issue at the border, because as Elliott Spagat reported for the AP in 2017, about two-thirds of applicants seem to flunk the CBP polygraph screen.