SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 46
May 16, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

INTELLIGENCE AGENCIES ARE TOLD TO COOPERATE WITH GAO

An expanded role for the Government Accountability Office (GAO) in oversight of the U.S. Intelligence Community (IC) may soon become a reality as the result of an official directive that requires intelligence agencies to work with auditors from the GAO, the investigative arm of Congress.

"It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information," affirmed Director of National Intelligence James R. Clapper in the new Intelligence Community Directive 114 on "Comptroller General Access to Intelligence Community Information." The Comptroller General is the director of the GAO.

"Generally, IC elements shall cooperate with GAO audits or reviews and make information available to appropriately cleared GAO personnel," the directive added. The directive was developed in response to a requirement in the 2010 Intelligence Authorization Act. A copy was obtained by Secrecy News.

There are, however, significant limitations on the newly mandated cooperation. For example, "Information on intelligence sources and methods" -- a notoriously elastic term -- "and information related to covert action shall not be provided" to GAO.

There is also a loosely defined provision that would exclude GAO from access to information on "core" intelligence capabilities: "Information that falls within the purview of the congressional intelligence oversight committees generally shall not be made available to GAO to support a GAO audit or review of core national intelligence capabilities or activities, which include intelligence collection operations, intelligence analyses and analytical techniques, counterintelligence operations, and intelligence funding," the directive says.

That passage is "the key area in the directive that gives us concern," wrote Gene L. Dodaro, the Comptroller General, in an April 28 letter to the DNI.

"Given historical experience, we are concerned that agencies might interpret the language regarding 'core' national intelligence capabilities and activities to apply to a broader range of audits and reviews than ODNI intends," Mr. Dodaro wrote. "In fact, agencies have in the past denied GAO access to requested information based on a very expansive view of what 'intelligence' entails."

That language in the directive, "if interpreted broadly, could significantly hinder GAO's ability to conduct related work that we are routinely requested by the Congress to do," he wrote.

On the whole, however, Mr. Dodaro of GAO welcomed the new directive. He said that it "establishes a presumption of cooperation with GAO, including a process for exploring alternative means of accommodating GAO requests for particularly sensitive information; requires timely responses to GAO requests; requires resolution of access disputes at the lowest possible organizational level; and requires communication with GAO, including notification of any delays in responding to requests for information."

The new Intelligence Community Directive 114 will take effect on June 30. It was transmitted to Congress, along with the comments of the Comptroller General, on April 29.

The final version of the directive "is better than the horrible first cut," a congressional official said. An initial draft of the directive last March was deemed to be "shockingly bad" from a congressional perspective. ("DNI Drags Heels on GAO Access to Intelligence," Secrecy News, March 30, 2011.)

"GAO is in a better position with the [new DNI] protocols than without them -- it's just not entirely clear how much better," the official told Secrecy News. "An awful lot depends on how individual IC elements choose to interpret" the language about access to "core" intelligence capabilities. "I've read that long, multi-clause sentence dozens of times and come away with a different take every time."

"It will be very interesting to see how the new protocols are actually implemented. GAO's moribund FBI counter-terrorism job is going to be the first test case." He was referring to a pending review of counterterrorism programs at FBI that was scuttled due to the FBI's refusal to cooperate with GAO auditors. Sen. Charles Grassley (R-ID) complained last year that "The [Department of Justice] Office of Legal Counsel is arguing that GAO does not have the authority to evaluate the majority of FBI counterterrorism positions, as these positions are scored through the National Intelligence Program (NIP) Budget."

But that obstacle should now have been eliminated. The new directive states explicitly that IC elements shall not "withhold information solely because the information relates to a program that is funded by the NIP."

"If the Department of Justice doesn't play ball, it will show the protocols don't mean anything," the congressional official said. "But my read of them is that they give GAO a clear path forward to finally do the work."

The Federation of American Scientists favors a greater GAO role in intelligence oversight as a way to augment the limited capacity of the congressional oversight committees. I discussed the public interest in such an arrangement in testimony at a February 29, 2008 hearing of the Senate Committee on Homeland Security and Governmental Affairs.

A CLOSE LOOK AT THE THOMAS DRAKE CASE

An insightful account of the pending prosecution under the Espionage Act of former National Security Agency official Thomas A. Drake appears this week in The New Yorker. Author Jane Mayer delves deeply into the origins of the case stemming from Drake's critical view of NSA management and surveillance practices. She explores the unfolding consequences of the case and its larger significance.

Among the article's many striking observations on the Drake case is the concluding quote from Mark Klein, a former AT&T employee who exposed warrantless surveillance activity by the Bush Administration. "I think it's outrageous," he says. "The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers."

See "The Secret Sharer" by Jane Mayer, The New Yorker, May 23, 2011:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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