Secrecy News

Who is an Intelligence Employee?

Could someone be considered an intelligence community employee even if his salary is not paid out of the intelligence budget?  Intelligence officials say yes, claiming that a person’s status as an intelligence employee can be based on an “assessment of the functions [he] performs.”  This novel approach conveniently allows agencies to curtail oversight of such employees’ activities.

In a letter sent to the Government Accountability Office last year, the Federal Bureau of Investigation articulated its position that the GAO is generally not entitled to review intelligence community information and, in particular, that the GAO would not be granted access to information about vacancies in the FBI counterterrorism program that could be considered intelligence jobs.

“The FBI will provide the GAO with information about FBI-wide vacancies for all ‘position types’ except those that are defined as being under the combined or shared authority of the Bureau and the Office of the Director of National Intelligence (ODNI),” wrote FBI General Counsel Valerie Caproni on July 28, 2009.  A copy of her letter (pdf) was obtained by Secrecy News.

But in a remarkable concluding passage, Ms. Caproni went on to argue that the “definition” of who is an intelligence employee is itself subject to interpretation:

“[T]he determination of whether an employee works in the Intelligence Community turns not only on the funding mechanism for their positions but on an assessment of the functions the employee performs,” she wrote.

Thus it seems that regardless of whether or not an intelligence agency pays someone’s salary, the Administration believes it can label that person an intelligence employee and then deny the GAO access to information about his or her position.

The U.S. Senate has yielded to the Obama Administration’s pressure to block congressional use of the GAO as an intelligence oversight tool, and it removed a provision to strengthen GAO oversight authority from the FY 2010 intelligence authorization bill that passed the Senate on August 5.  But the question of GAO oversight of intelligence remains a live, unresolved issue in the House.