SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2014, Issue No. 1
January 6, 2014

Secrecy News Blog: http://blogs.fas.org/secrecy/

GAO OVERSIGHT OF NSA: A NEGLECTED OPTION

Years ago, the Government Accountability Office, the investigative arm of Congress, conducted routine audits and investigations of the National Security Agency, such that the two agencies were in "nearly continuous contact" with one another. In the post-Snowden era, GAO could perform that oversight function once again.

"NSA advises that the GAO maintains a team permanently in residence at NSA, resulting in nearly continuous contact between the two organizations," according to a 1994 CIA memorandum for the Director of Central Intelligence.

"NSA's practice has been to cooperate with GAO audits and investigations to the extent possible in accordance with DOD regulations," the CIA memorandum said. "This includes providing the GAO with documents requested, including CCP CBJB's [congressional budget justification books for the consolidated cryptologic program] as long as (1) the request was in support of a valid audit or investigation and (2) the recipients of the classified material had the requisite accesses and could meet security requirements for classified data control and storage. Documents provided in the past have included CCP CBJBs."

At a 2008 Senate hearing, Sen. Daniel Akaka asked the GAO about its relationship with NSA. "I understand that GAO even had an office at the NSA," Sen. Akaka noted.

"We still actually do have space at the NSA," replied David M. Walker, then-Comptroller General, the head of the GAO. "We just don't use it. And the reason we don't use it is we are not getting any requests [from Congress]. So I do not want to have people sitting out there twiddling their thumbs."

Today, the justification for restoring the type of on-site, investigative oversight of NSA that GAO could provide may be newly apparent-- though no one seems to have noticed that GAO could actually provide it.

The recent report of the the Review Group on Intelligence and Communications Technologies includes an appendix citing the various components of oversight of U.S. intelligence, but it does not mention GAO at all.

Whether NSA bulk collection programs are ultimately extended, modified, or terminated, GAO could play a useful role as the eyes and ears of Congress at NSA. While there are several other oversight mechanisms in place, GAO would bring some unique features to the mix.

NSA has a fairly robust Office of the Director of Compliance to perform internal oversight, but it answers to the NSA Director, and reflects his priorities, not necessarily those of Congress. Inspector general oversight focuses on compliance with the letter of the law, and it is probably less well-suited than GAO to consider systemic problems, performance issues and policy alternatives. (Last November, the IC Inspector General deflected a request from Senator Leahy to conduct oversight of NSA surveillance programs, citing resource limitations and other issues.)

If it were directed to conduct audits and investigations on behalf of Congress, there is reason to believe the GAO could add a valuable dimension to NSA oversight. Just as a proposed third-party advocate might "thicken" the deliberations of the Foreign Intelligence Surveillance Court concerning surveillance law, so too might GAO investigators enrich the oversight of NSA programs as they are executed in practice.

In Intelligence Community Directive 114, issued in 2011 following years of stagnation in GAO oversight of intelligence, DNI James Clapper instructed U.S. intelligence agencies to be responsive to GAO, at least within certain boundaries.

"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," the DNI wrote.

THE CLAPPER "LIE," AND THE SENATE INTELLIGENCE COMMITTEE

Director of National Intelligence James R. Clapper has been widely criticized for making a false statement at a March 2013 hearing of the Senate Intelligence Committee. What has gone unremarked, however, is the fact that the Committee permitted that statement to stand uncorrected.

Based on this exchange, and in light of the revelations to the contrary made by Edward Snowden, some have concluded that DNI Clapper "lied to Congress," as the New York Times editorial board put it last week. Some go further to suggest that the DNI should be prosecuted and imprisoned, as Sen. Rand Paul did yesterday.

It is of course wrong for officials to make false statements, as DNI Clapper did when he denied that NSA collects "any type of data at all" on ordinary Americans. But did the DNI actually "lie to Congress"?

In ordinary usage, lying usually connotes an intent to deceive. In this case, DNI Clapper could not have intended to deceive the Senate Intelligence Committee because the true answer to Senator Wyden's question was already known to Senator Wyden and to all the other members of the Committee (as noted the other day by ODNI General Counsel Robert S. Litt). Committee members could not have been misled by the DNI's response, and it makes no sense to say that he intended to mislead them.

What remains true is that others -- especially attentive members of the public -- were deceived by the DNI's statement. If DNI Clapper "lied," it was to them, not to the Senate Intelligence Committee, that he did so. But the Committee permitted that deception to occur, and to persist, and so it must take its share of responsibility for that. Yet unlike the DNI (who apologized, several months after the fact, saying he misunderstood the question), the Committee has not acknowledged any failure on its part.

When Senator Wyden posed his question in open session, he was evidently attempting to corner the DNI and to compel him to involuntarily reveal classified information about the NSA bulk collection program. At the time, it seemed to be a clever rhetorical maneuver. Even if the DNI refused to respond or requested to answer the question in closed session, that would have indicated that something pertinent was being concealed.

However, by answering falsely, the DNI turned the tables on Senator Wyden and the Senate Intelligence Committee. Whether by design or not (almost certainly not), the DNI's response challenged the Committee to make its own choice either to disclose classified information about the NSA program -- in order to rebut and correct the DNI's answer -- or else to acquiesce in the dissemination of false information to the public.

(There was another conceivable option. Without revealing specific classified information, the Committee could have issued a statement that the record of the March 12 hearing included certain erroneous and misleading statements, and that it should not be relied upon.)

As it turned out, the Senate Intelligence Committee made exactly the same choice that DNI Clapper is accused of making. The Committee evidently decided that national security classification trumped any obligation it had to produce an honest and accurate public record. As a result, the Committee itself became complicit in an act of public deception.

This is deeply unfortunate. It means that unclassified Committee statements and publications cannot be granted an unqualified presumption of accuracy or good faith. With the Clapper gambit, the Senate Intelligence Committee moved beyond the familiar practice of secrecy and into the propagation of false and misleading information.

BITCOIN, SOUTH SUDAN, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Bitcoin: Questions, Answers, and Analysis of Legal Issues, December 20, 2013:

The Crisis in South Sudan, December 27, 2013:

Increasing the Efficiency of Existing Coal-Fired Power Plants, December 20, 2013:

Spectrum Policy: Provisions in the 2012 Spectrum Act, December 23, 2013:

Brief History of NIH Funding: Fact Sheet, December 23, 2013:

The Medical Device Excise Tax: Economic Analysis, December 23, 2013:

In Re Terrorist Attacks on September 11, 2001: Dismissals of Claims Against Saudi Defendants Under the Foreign Sovereign Immunities Act (FSIA), December 27, 2013:

Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency, December 20, 2013:

Iran's Nuclear Program: Tehran's Compliance with International Obligations, December 20, 2013:

Thailand: Background and U.S. Relations, December 20, 2013:

Science and Technology Issues in the 113th Congress, December 27, 2013:

******************************

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

The Secrecy News blog is at:
      http://blogs.fas.org/secrecy/

To SUBSCRIBE to Secrecy News, go to:
     http://blogs.fas.org/secrecy/subscribe/

To UNSUBSCRIBE, go to:
      http://blogs.fas.org/secrecy/unsubscribe/

OR email your request to saftergood@fas.org

Secrecy News is archived at:
      http://www.fas.org/sgp/news/secrecy/index.html

SUPPORT the FAS Project on Government Secrecy with a donation here:
      https://members.fas.org/donate/