By Marisa Taylor, McClatchy Washington Bureau
WASHINGTON — The nation’s spy satellite agency failed to notify authorities when some employees and contractors confessed during lie detector tests to crimes such as child molestation, an intelligence inspector general has concluded.
In other cases, the National Reconnaissance Office delayed reporting criminal admissions obtained during security clearance polygraphs, possibly jeopardizing evidence in investigations or even the safety of children, according to the inspector general report released Tuesday, almost two years after McClatchy’s reporting raised similar concerns.
In one instance, one of the agency’s top lawyers told colleagues not to bother reporting confessions by a government contractor of child molestation, viewing child pornography and sexting with a minor, the inquiry by the inspector general for the intelligence community revealed.
“Doubt we have enough to interest the FBI,” the agency’s then-assistant general counsel told another official in an email, adding, “The alleged victim is fourteen years old and fully capable of calling the police herself.” Neither party in the email was identified by name.
After the other official insisted on reporting it, the confession was eventually investigated and it turned out that the girl was still in contact with the contractor who’d confessed to the crimes. It took almost five weeks for the Department of Justice to be informed.
When confronted with the lapses by the inspector general’s investigators, the National Reconnaissance Office’s then-top lawyers said they “were not legally obligated … to report child sexual abuse to DOJ or law enforcement organizations because child abuse is a state crime, not a federal crime,” the report said.
“Therefore they generally chose not to report those crimes unless the admissions also involved federal crimes such as possession of child pornography.”
The conclusions confirm an investigation by McClatchy in July 2012 that found law enforcement officials were not being told of some criminal confessions obtained during the National Reconnaissance Office’s security clearance polygraphs.
“It’s hard to understand why the NRO failed to report crimes involving children immediately …,” said Sen. Charles Grassley, R-Iowa, who demanded the inquiry after reading McClatchy’s stories. “The NRO showed a complete lack of common sense in failing to require reporting of serious state crimes of this sort.”
The inspector general said that as a result of McClatchy’s reporting and congressional interest, the spy agency had improved its reporting of crimes.
McClatchy, however, learned that a second inquiry of the same polygraph division recently documented other problems. The National Reconnaissance Office’s inspector general found “significant shortcomings” in the agency’s polygraph program that it says “may result in potential negative national security implications originating at the NRO.”
That inspector general declined to immediately provide a copy of the unclassified and recently completed report, but McClatchy was able to obtain details of its conclusions. The report quotes an NRO official as saying the polygraph program was “terribly broken” and would require a “paradigm shift” to address shortcomings. The official added that the “current status of the NRO polygraph program is bleak.”
The NRO had been warned as early as 2010 about possible problems with crime reporting by the National Security Agency’s inspector general after an outside routine review that intelligence inspectors general conduct. In an unusual arrangement, the NRO is staffed by both the CIA and Air Force employees.
While the inspector general for the intelligence community confirmed that the NRO wasn’t legally required to report certain state crimes such as child molestation, it noted that the agency wasn’t prevented from reporting them, especially when “an imminent danger” to others may exist.
The NRO polygraphed more than 30,000 people from 2009 to 2012. Less than 1 percent in the first half of 2013 made admissions that would jeopardize security clearances or trigger criminal investigations, the intelligence inspector general’s report said.
The NRO, however, did not report some alleged federal crimes that it was required to, such as possession of child pornography, in part because of “inconsistent and inaccurate advice” by the agency’s top lawyers at the time, the inspector general for the intelligence community found. Those lawyers are not named and are no longer in their positions, but the report did not say whether they’d moved or been fired because of the reporting problems.
Delays as long as several months, meanwhile, meant “individuals could continue the criminal activity or tamper with or destroy evidence in the interim,” said the inspector general’s office, which said it referred for investigation seven admissions related to child porn or child abuse that the NRO didn’t report.
To prosecute a polygraph confession, criminal investigators often must collect more evidence or get an admission to a crime during a separate interrogation, because polygraph confessions are not admissible in most courts as evidence against defendants.
Yet McClatchy reported that the NRO hadn’t told law enforcement agencies that an Air Force lieutenant colonel admitted in 2010 during a lie detector test that he’d touched a child in a sexual way and had downloaded child pornography on his Pentagon computer.
McClatchy determined that he later retired and was still collecting retirement benefits. The inspector general for the intelligence community confirmed that the NRO didn’t notify authorities who could have investigated the case, reporting it only to the Air Force division that handles security clearances.
After McClatchy’s report, investigators with the Department of Homeland Security looked into it. The report released Tuesday doesn’t say what resulted from that inquiry, but the officer still held a security clearance as of earlier this month, Grassley said.
“The NRO has made important strides in reducing the time it takes to report crimes from over 100 days to an average of three days, but quite frankly, sometimes that’s still too long,” Grassley said. “It’s unacceptable to give a person who has admitted to viewing child pornography or of sexually abusing children any time to destroy evidence or strike again.”
McClatchy also reported that Escondido, Calif., police and school district officials said they weren’t informed when a former substitute teacher in their region confessed in 2010 to the NRO that he’d molested a former student.
The federal contractor said that if he were asked, “ ‘Have you ever molested a nine-year-old?’ I’d have to say yes,” an internal document obtained by McClatchy said.
At the time, the NRO, the Justice Department and the FBI refused to comment on the case.
The inspector general determined that the NRO had reported it to the Justice Department and the FBI’s Innocent Images International Task Force. The NRO said it was told the matter had been referred to local law enforcement.
The Escondido police, however, said they’d scoured their records looking for any notification and found nothing. The department is not part of that FBI task force but is part of other bureau task forces, a spokesman said. School officials hadn’t heard about it until a McClatchy reporter called them in 2012.
At that point, the Escondido police launched a criminal investigation but couldn’t locate a victim, and the former substitute teacher refused to be questioned.
“We went to great lengths to investigate this guy, but ultimately we could not file a case with the district attorney,” Neal Griffin, a lieutenant with the Escondido police department, said last week. “The extensive delay in reporting made for a major stumbling block.”
The inspector general noted there were signs of similar problems at other intelligence agencies. “It’s my view this issue is systemic,” said I. Charles McCullough III, the inspector general for the intelligence community. The FBI did not immediately respond to questions Tuesday.
McClatchy also reported that the NRO polygraphers had accused their agency of pressuring them to collect information during the lie detector tests that was against Pentagon policy. The Pentagon permits the NRO to ask direct questions during security clearance investigations only about intelligence matters.
Polygraphers told McClatchy they were being pressured to go after prohibited personal matters during security clearance polygraphs, including, in one case, interrogating a longtime contractor about her molestation as a child. The Pentagon has told the NRO it doesn’t have the authority to ask directly about crimes during its polygraph screenings. It’s supposed to directly ask only about national security issues such as spying and terrorism, the Pentagon has said.
Polygraphers said they were being rewarded with bonuses or penalized based on the number of admissions they obtained. McClatchy reviewed orders given to polygraphers that confirmed they were told in some cases to collect the more personal information. The polygraphers said it was not a written policy, but an off-the-books requirement.
The NRO’s inspector general found instances in which polygraphers went beyond those limits, but it blamed “inefficient testing practices.”
That inspector general accused McClatchy of taking facts “out of context.”
“While these instances may lend to perceptions that the NRO is exceeding its authority in asking questions beyond the scope … we found no evidence of programmatic directives or policies expressly instructing examiners to do so,” the inspector general’s office concluded in its separate inquiry.
The inspector general, however, found 1,800 people with current or previous NRO access who never underwent polygraph exams. More than 600 people didn’t get polygraphed within a year of gaining access to classified information.
“These shortfalls diminish the integrity of the NRO polygraph program and may cast uncertainty onto particular test results,” the inspector general’s office said.
Although the inspectors general for the NRO and intelligence community confirmed aspects of allegations raised by polygraphers who talked to McClatchy, one of the polygraphers was denied whistleblower status by a third inspector general.
Former NRO polygrapher Mark Phillips resigned after objecting to the agency’s practices. He told the Pentagon inspector general he was retaliated against as a result of blowing the whistle.
His lawyer said he tried to persuade the Pentagon to look more deeply into the overall allegations, but officials there refused. The Pentagon inspector general’s office noted that NRO supervisors’ knowledge of Phillips’ complaints prior to the disciplinary action “could demonstrate that the disclosures were a contributing factor” but ultimately concluded that Phillips was punished for other, legitimate reasons.
“In some ways, these reports are vindication of a whistleblower who has been retaliated against and ignored,” said Mark Zaid, Phillips’ lawyer. “At the same time, this shows there needs to be legitimate oversight of the intelligence community’s polygraph programs and that review needs to come from Congress in public hearings.”
AFP Photo/Saul Loeb