Accounting Board Okays Deceptive Budget Practices

Government agencies may remove or omit budget information from their public financial statements and may present expenditures that are associated with one budget line item as if they were associated with another line item in order to protect classified information, the Federal Accounting Standards Advisory Board concluded last week.

Under the newly approved standard, government agencies may “modify information required by other [financial] standards” in their public financial statements, omit otherwise required information, and misrepresent the actual spending amounts associated with specific line items so that classified information will not be disclosed. (Accurate and complete accounts are to be maintained separately so that they may be audited in a classified environment.)

See Classified Activities, Statement of Federal Financial Accounting Standards (SFFAS) 56, Federal Accounting Standards Advisory Board, October 2018.

The new policy was favored by national security agencies as a prudent security measure, but it was opposed by some government overseers and accountants.

Allowing unacknowledged modifications to public financial statements “jeopardizes the financial statements’ usefulness and provides financial managers with an arbitrary method of reporting accounting information,” according to comments provided to the Board by the Department of Defense Office of Inspector General.

Properly classified information should be redacted, not misrepresented, said the accounting firm Kearney & Company. “Generally Accepted Accounting Principles (GAAP) should not be modified to limit reporting of classified activities. Rather, GAAP reporting should remain the same as other Federal entities and redacted for public release or remain classified.”

The new policy, which extends deceptive budgeting practices that have long been employed in intelligence budgets, means that public budget documents must be viewed critically and with a new degree of skepticism.

A classified signals intelligence program dubbed “Vesper Lillet” that recently became the subject of a fraud indictment was ostensibly sponsored by the Department of Health and Human Services, but in reality it involved a joint effort of the National Reconnaissance Office and the National Security Agency.

See “Feds allege contracting fraud within secret Colorado spy warehouse” by Tom Roeder, The Gazette (Colorado Springs), October 5, 2018.

Financial Accounts May Be “Modified” to Shield Classified Programs

In an apparent departure from “generally accepted accounting principles,” federal agencies will be permitted to publish financial statements that are altered so as to protect information on classified spending from disclosure.

The new policy was developed by the government’s Federal Accounting Standards Advisory Board (FASAB) in response to concerns raised by the Department of Defense and others that a rigorous audit of agency financial statements could lead to unauthorized disclosure of classified information.

In order to prevent disclosure of classified information in a public financial statement, FASAB said that agencies may amend or obscure certain spending information. “An entity may modify information required by other [accounting] standards if the effect of the modification does not change the net results of operations or net position.”

Agencies may also shift accounts around in a potentially misleading way. “A component reporting entity is allowed to be excluded from one reporting entity and consolidated into another reporting entity. The effect of the modifications may change the net results of operations and/or net position.” See Statement of Federal Financial Accounting Standards 56, FASAB, July 5, 2018 (final draft for sponsor review).

In response to an earlier draft of the new standard that was issued last December, most government agencies endorsed the move to permit modifying public financial statements.

“The protection of classified information and national security takes precedence over financial statements,” declared the Central Intelligence Agency in its comments (submitted discreetly under the guise of an “other government agency”).

“It is in the best interest of national security to allow for modification to the presentation of balances and reporting entity in the GPFFR [the publicly available General Purpose Federal Financial Report],” CIA wrote.

But in a sharply dissenting view, the Pentagon’s Office of Inspector General said the new approach was improper, unwise and unnecessary.

It “jeopardizes the financial statements’ usefulness and provides financial managers with an arbitrary method of reporting accounting information,” the DoD OIG said.

“We do not agree that incorporating summary-level dollar amounts in the overall statements will necessarily result in the release of classified information.”

“This proposed guidance is a major shift in Federal accounting guidance and, in our view, the potential impact is so expansive that it represents another comprehensive basis of accounting.”

“The Board should clarify whether this proposed standard, or subsequent Interpretations, could permit entities to record misstated amounts in the financial statements to mislead readers with the stated purpose of protecting classified information. We believe that no accounting guidance should allow this type of accounting entry.”

“We do not believe that… the Board’s proposed guidance would effectively protect classified information, comply with GAAP [generally accepted accounting principles], or serve the public interest,” the DoD OIG wrote.

The Kearney & Company accounting firm also objected, saying that it would be better to classify certain financial statements or redact classified spending than to misrepresent published information.

“Generally Accepted Accounting Principles (GAAP) should not be modified to limit reporting of classified activities. Rather, GAAP reporting should remain the same as other Federal entities and redacted for public release or remain classified.”

If a published account is modified “so material activity is no longer accurately presented to the reader of financial statements, its usefulness to public users is limited and subject to misinterpretation.”

“This approach limits the value, usefulness, and benefits of financial statements as currently defined by GAAP. Financial statements of classified entities should remain classified or redacted like other classified documents before release to the public.”

“The integrity of current GAAP as it applies to all Federal entities should be retained,” Kearney said in its comments.

But the FASAB ultimately rejected those views.

“The Board determined that options other than those permitted in this Statement may not always adequately resolve national security concerns,” according to the final draft of the policy, which the Board provided to Secrecy News.

“Without this Statement, there is a risk that reporting entities may need to classify their entire financial statements to comply with existing accounting standards, which would likely result in the need to classify a large portion of the government-wide financial statements.”

In practice, the Board suggested, “Modifications may not be needed to prevent the disclosure of certain classified information. Therefore, this Statement permits, rather than requires, modifications on a case-by-case basis.”

The new accounting standard is expected to be approved by the FASAB sponsors — namely the Secretary of Treasury, the Comptroller General, and the Director of the Office of Management and Budget — by the end of a 90 day review period in October.

Last month, the FASAB issued a separate classified “Interpretation” of the new standard that addressed the policy’s implementation in detail. The contents of that document are not publicly known.

The topic of accounting for classified spending has been a challenging one for the Board, said Assistant Director Monica R. Valentine on Monday. “This is the first time we’ve had to deal with this sort of issue.”

Pentagon Audit: “There Will Be Unpleasant Surprises”

For the first time in its history, the Department of Defense is now undergoing a financial audit.

The audit, announced last December, is itself a major undertaking that is expected to cost $367 million and to involve some 1200 auditors. The results are to be reported in November 2018.

“Until this year, DoD was the only large federal agency not under full financial statement audit,” Pentagon chief financial officer David L. Norquist told the Senate Budget Committee in March. Considering the size of the Pentagon, the project is “likely to be the largest audit ever undertaken,” he said.

The purpose of such an audit is to validate the agency’s financial statements, to detect error or fraud, to facilitate oversight, and to identify problem areas. Expectations regarding the outcome are moderate.

“DOD is not generally expected to receive an unqualified opinion [i.e. an opinion that affirms the accuracy of DoD financial statements] on its first-ever, agency-wide audit in FY2018,” the Congressional Research Service said in a new report last week. See Defense Primer: Understanding the Process for Auditing the Department of Defense, CRS In Focus, June 26, 2018.

In fact, “It took the Department of Homeland Security, a relatively new and much smaller enterprise, about ten years to get to its first clean opinion,” Mr. Norquist noted at the March Senate hearing.

In the case of the DoD audit, “I anticipate the audit process will uncover many places where our controls or processes are broken. There will be unpleasant surprises. Some of these problems may also prove frustratingly difficult to fix.”

“But the alternative is to operate in ignorance of the challenge and miss the opportunity to reform.  Fixing these vulnerabilities is essential to avoid costly or destructive problems in the future,” Mr. Norquist said.

STRATCOM Commander “Hates” Some Press Reports

“I hate the stuff that shows up in the press,” said Gen. John E. Hyten, commander of U.S. Strategic Command, at a congressional hearing on nuclear deterrence last March, the record of which has just been published.

Gen. Hyten was responding to a question from Rep. Austin Scott (R-GA) about the volume of unclassified information that gets released concerning the Ground-Based Strategic Deterrent (GBSD).

“General Hyten, we have seen a lot of GBSD acquisition details loaded into unclassified acquisition databases and run by the Air Force,” said Rep. Scott. “We all know that Russia, China, and others scoop all this stuff up to the best of their abilities and analyze it intensively.”

“Why is all of this put out in the open? Should we reassess what is unclassified in these acquisition documents?” Rep. Scott wanted to know.

“I hate the stuff that shows up in the press,” Gen. Hyten replied. “I think we should reassess that.”

“Just to complete that thought, I hate the fact that cost estimates show up in the press as well,” he added. “So I would really like to figure out a different way to do business than that. I hate seeing that kind of information in the newspaper.”

See Military Assessment of Nuclear Deterrence Requirements, hearing before the House Armed Services Committee, March 8, 2017.

In answer to another question at the hearing, Gen. Hyten denied that US nuclear forces are on “hair trigger alert.”

“Our nuclear command and control system is constantly exercised to ensure that only the President, after consultations with his senior advisors and military leaders, can authorize any employment of our nuclear forces,” he said.

On the other hand, Gen. Paul Selva, Vice Chair of the Joint Chiefs of Staff, said that the time available for a President to make a decision about a nuclear strike could be highly compressed depending on the scenario.

“The launch-on-warning criteria basically are driven by physics,” he said at the hearing. “The amount of time the President has to make a decision is based on when we can detect a launch [and] what it takes to physically characterize the launch.”

“I don’t believe the physics let us give him much more time,” Gen. Selva said.

Executive Branch Oversight, Here & There

Government oversight can take diverse forms even among Western democracies.

A new report from the Law Library of Congress surveys the mechanisms of parliamentary oversight of the executive branch in Canada, Germany, Italy, Japan, Poland, Sweden, the United Kingdom, and the United States.

In Sweden, for example, “Any member of the public may ask the JO [Justitieombudsman, or parliamentary ombudsman] to investigate a breach of law committed by an agency or employee. The complaint must be made in writing and cannot be anonymous.”

The Law Library report does not provide comparative analysis, but simply presents a descriptive summary of each nation’s government oversight practices, with links to additional resources. Any policy conclusions to be drawn are left to the reader.

See Parliamentary Oversight of the Executive Branch, Law Library of Congress, August 2017.

ODNI: Annexes to Intelligence Bills are not “Secret Law”

A recent article in Secrecy News indicated that the classified annexes that accompany the annual intelligence authorization bills are legally binding and constitute “secret law” (A Growing Body of Secret Intelligence Law, May 4).

Robert S. Litt, the General Counsel of the Office of the Director of National Intelligence, wrote in last week to dispute that characterization:

    I read your piece on secret law and the classified annex to the Intelligence
    Authorization bills with interest.  I thought it was worth responding to let you know
    that I believe you are incorrect in saying that the classified annex has the force of
    law.  Each year’s Intelligence Authorization Act contains a provision — usually
    Section 102 in recent years — that provides that the amounts authorized to be
    appropriated are those set out in the schedule of authorizations in the classified
    annex.  It is only that schedule of authorizations that has the force of law.  The
    remainder of the annex is report language explaining the positions of the committee
    on a variety of issues, and has no more force than any other committee report.  That
    is to say, it expresses the views of the Congress, and it therefore would ordinarily be
    followed as a matter of comity, but does not have the force of law.

    In this regard, it is worth noting that the unclassified Joint Explanatory Statement
    accompanying the Intelligence Authorization Act for FY 2015 states (160 Cong. Rec.
    S6464, Dec. 9, 2014):

    “This joint explanatory statement shall have the same effect with respect to the
    implementation of this Act as if it were a joint explanatory statement of a
    committee of conference.

    “This explanatory statement is accompanied by a classified annex that contains
    a classified Schedule of Authorizations.  The classified Schedule of
    Authorizations is incorporated by reference in the Act and has the legal status of
    public law.”

    Bob Litt

In short: The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.

We accept the correction.

A congressional intelligence committee staff member concurred.

“The majority of the classified annexes are distinct from the schedules of authorization and are where the Committees opine on and direct various things,” the staff member said. “As a technical point, I believe that Bob is correct — they don’t have the force of law as they are not incorporated in the same way as the schedules.”

“That said, we very much expect that the Executive Branch will follow them, which in fact it does. I don’t know that this matters much, though.  While it may not be secret law, it is secret text that the Congress approves and is presented to the President at the time of his signature and that we believe is binding in practical terms,” the staff member added.

Thus, even if they do not entirely qualify as “secret law,” the classified annexes still have normative force, helping to shape the direction and execution of intelligence policy.

They therefore retain their significance for government accountability, including congressional accountability. And yet as a category of documents, the annexes are completely withheld from the public even decades after they are produced. Unfortunately, that remains undisputed.

*    *    *

Its specific content aside, Mr. Litt’s message is noteworthy as an uncommon act of official participation in public dialog.

In an open society, government officials ought to be reasonably accessible to the members of the public whom they ostensibly serve. But with some exceptions, they are not. Either they are insulated by layers of security, or they are isolated by hierarchical bureaucratic structures that make them unreachable. The secrecy-intensive culture of intelligence only aggravates the problem. Even an open government law like the Freedom of Information Act creates a procedural buffer that often impedes any kind of direct dialog.

Unlike most of his colleagues, Mr. Litt has been willing to engage with members of the public with some frequency. You can ask him a question. You can argue with him. He will argue with you. The point is that he is available to non-governmental interlocutors in a way that should be ordinary but is in fact unusual and exemplary. (See, for example, here, here and here.)

Mr. Litt’s attentiveness to the nuances of an article in Secrecy News brings to mind a passage from Robert M. Gates’ 1996 CIA memoir From the Shadows that is dear to the heart of small newsletter writers. The author was recalling Director of Central Intelligence Bill Casey whom he described as an omnivorous consumer of information from even the most obscure sources.

“Bill Casey was one of the smartest people I have ever known and certainly one of the most intellectually lively,” Gates wrote (p. 217). “He subscribed to newsletters and information sheets that I sometimes thought couldn’t have more than five readers in the world, and then he would ask if I had seen one or another item in them.”

Making Government Accountability Work

The U.S. Constitution does not explicitly recognize a “public right to know.” But without reliable public access to government information, many features of constitutional government would not make sense. Citizens would not be able to evaluate the performance of their elected officials. Freedom of speech and freedom of the press would be impoverished. Americans’ ability to hold their government accountable for its actions would be neutered.

The conditions that make government accountability possible and meaningful are the subject of the new book Reclaiming Accountability by Heidi Kitrosser (University of Chicago Press, 2015).

The author introduces the term “substantive accountability,” which she contrasts with mere “formal accountability.” While formal accountability includes such things as the right to vote, substantive accountability requires that people must “have multiple opportunities to discover information relevant to their votes….”

This may seem obvious, but the trappings of formal accountability are often unsupported by the information that is needed to provide the substance of accountability, especially in matters of national security.

Kitrosser, a professor of law at the University of Minnesota Law School, shows that the principles of substantive accountability are deeply rooted in the text, structure and history of the Constitution. She uses those principles to provide a framework for evaluating contemporary assertions of presidential power over information, including executive privilege, state secrets, secret law, and prosecutions of unauthorized disclosures.

It cannot be the case, for example, that unauthorized disclosures of classification information are categorically prohibited by law and also that the President has discretion to classify information as he sees fit. If that were so, she explains, then the President would have unbounded authority to criminalize disclosure of information at will, and the classification system would have swallowed the First Amendment. As she writes: “The First Amendment’s promise would be empty indeed if its protections did not extend to information that the president wishes to keep secret.”

Kitrosser reviews the relevant case law to find openings and lines of argument that could be used to bolster the case for substantive accountability. She notes that Supreme Court rulings over the years “contain the seeds of an affirmative case for strongly protecting classified speakers.” In a 1940 ruling in Thornhill v. Alabama, for example, the Court declared that “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

There is, of course, an opposing school of thought which posits a largely unconstrained presidential authority over government information. Moreover, this presidentialist view has been on “an upward historical trajectory” in recent decades. Leak investigations and prosecutions have risen markedly, and so have assertions of the state secrets privilege. Secret law blossomed after 9/11. The very term “executive privilege” is a modern formulation that only dates back to 1958 (as noted by Mark Rozell).

One of the deeply satisfying features of Kitrosser’s book (which is a work of scholarship, not a polemic) is her scrupulous and nuanced presentation of the presidential supremacist perspective. Her purpose is not to ridicule its weakest arguments, but to engage its strongest ones. To that end, she traces its origins and development, and its various shades of interpretation. She goes on to explain where and how substantive accountability is incompatible with presidential supremacy, and she argues that the supremacist viewpoint misreads constitutional history and is internally inconsistent.

The book adds analytical rigor and insight to current debates over secrecy and accountability, which it ultimately aims to inspire and inform.

“We can seek to harness and support those aspects of American law, politics, and culture that advance substantive accountability,” she writes.

“Reclaiming accountability is no single act. From internal challenges or external leaks by civil servants, to journalistic inquiries and reports, to congressional oversight, to FOIA requests, accountability is claimed and reclaimed every day by countless actors in myriad ways.”