In Fine Print
Clarifying GAO's role in intelligence oversight
Tuesday, October 26, 2010
When Congress wants to investigate the intelligence community's core issues, such as evaluating its sources and methods or looking into the origins of a National Intelligence Estimate, the work should be directed by the House or Senate intelligence panels and not the Government Accountability Office.
This position became clearer last week with the publication of a May 27 letter from outgoing national security adviser James L. Jones to Rep. Anna G. Eshoo (D-Calif.). Eshoo was a prime author of an amendment to the fiscal 2010 intelligence authorization bill that authorized GAO investigations into intelligence matters.
Under its original provisions, after discussions with the director of national intelligence (DNI), a GAO investigation of intelligence could begin, with the comptroller general having final decision over what access was needed and how the inquiry would take place. The DNI could try to limit access, but that had to be reported to Congress.
The amendment was dropped from the House-passed bill, in the face of a presidential veto.
Eshoo, a senior member of the Intelligence Committee, complained from the House floor that, unlike other committees, the intelligence panel could not order GAO investigations on all subjects involving the intelligence community.
The House passed the Eshoo amendment May 27 and attached it to a Defense Department spending bill, despite Jones's statement in his letter that her provision altered the traditional framework for investigations of intelligence and that the bill's language "would elicit a veto."
The amendment was dropped again, and the issue went back to what language would be contained in the original fiscal 2010 intelligence authorization legislation.
The measure languished for months on Capitol Hill. Finally, late last month, Senate and House leaders agreed to compromises, including a change to the Eshoo language. Director of National Intelligence James R. Clapper Jr. would be instead required to consult with the comptroller general and issue a directive governing GAO access to intelligence information "consistent with existing law."
Jones's May 27 letter and an answer Clapper gave this month during a Bipartisan Policy Center conference offer insight into what was bothering the intelligence community about the GAO situation and how it apparently is to be handled from now on.
In the first instance, both Jones and Clapper made clear that intelligence agencies would continue to respond to GAO investigations based on requests by all congressional committees for information within their jurisdictions. After all, the GAO is Congress's outside investigative arm.
Jones included with his letter a list, classified "confidential," of 150 GAO investigation or audit requests made during 2009 to intelligence agencies and to the DNI in 2010.
The list, Jones wrote, showed "the responsiveness of the IC [intelligence community] to the GAO."
In a statement Monday, a DNI spokesman said, "In limited situations, the IC has declined to participate in certain aspects of a GAO review if the review seeks to examine or audit an intelligence activity that is subject to oversight by the intelligence committees."
Clapper noted that in his past roles as a senior intelligence official in the Defense Department he had "worked with, been the victim of, however you want to put it, of numerous GAO studies."
He pointed out two areas in which the GAO had been useful: One was planning for rapid growth in the use of intelligence, reconnaissance and surveillance, the Pentagon's growing use of unmanned and manned aircraft in Iraq and Afghanistan. The other was the GAO "keeping the heat on us . . . in the area of [security] clearance reform."
But Jones and then Clapper drew a bright line between general inquiries and those where, as Jones wrote to Eshoo, the [House and Senate] intelligence committees should do their own investigating.
He defined the latter as "the evaluation, review, and audit of intelligence activities, capabilities, programs and operations," as well as activities involving "intelligence sources . . . intelligence methods, and the analysis of intelligence funding."
Clapper said he thought these areas were reserved exclusively for investigations run by the congressional intelligence panels, and described them as involving "the core essence of what intelligence is and does" and "what the intelligence committees were established to do."
The DNI made another important distinction. He said that if the intelligence committees wanted GAO assistance - such as from their experts in certain subjects - those people should be lent to the committees so they would be working under the auspices of the intelligence panel and not at the direction of the comptroller general.
Steven Aftergood, who published Jones's letter last week on his Secrecy News blog, wrote that Clapper's view was "a considerably narrower view of what should be off limits" than that of Jones.
The DNI has begun developing the GAO directive as required by statute and expects it to be completed by May 1.