GAO Access to Intel Obstructed by 1988 OLC Opinion

08.05.10 | 2 min read | Text by Steven Aftergood

The current dispute between the Obama Administration and some members of Congress over whether to strengthen oversight of intelligence programs by the Government Accountability Office is rooted in a 1988 opinion from the Justice Department Office of Legal Counsel (OLC), which held that GAO access to intelligence information is actually barred by law.

In 1988, the GAO requested access to intelligence files concerning Panama as part of an investigation of U.S. policy towards Panamanian leader Manuel Noriega.  In response to an inquiry from the National Security Council, the Office of Legal Counsel issued an opinion (pdf) stating that the GAO was not entitled to the requested records on Panama and Noriega.  Not only that, but the opinion (written by Acting OLC head Douglas W. Kmiec) concluded categorically that “GAO is precluded by the Intelligence Oversight Act from access to intelligence information.”

Today, the FBI cites that 1988 opinion to justify its refusal to permit GAO to perform a review of the FBI counterterrorism program and other matters previously studied by GAO.

The 1988 OLC opinion “has had a broad negative impact on our access to information at the FBI and several other agencies that are part of the intelligence community,” wrote Acting Comptroller General Gene L. Dodaro in a recent letter (pdf).  “Moreover, we are concerned that this position is now being extended to cover agencies and activities that have long been subject to GAO oversight, such as human capital practices and vacancies within the FBI’s Counterterrorism Division.”

Mr. Dodaro’s June 15, 2010 letter regarding GAO access to government information was sent to Senators Charles Grassley and Richard Shelby.  A copy was obtained by Secrecy News.

The OLC opinion that GAO’s access to intelligence information is “precluded” by law seems demonstrably wrong and in any case has been overtaken by events.  A Department of Defense Instruction (7650.01) explicitly permits GAO access to DoD intelligence information.  Do the Justice Department and the FBI believe that this DoD Instruction violates the law?  And if the law prohibits GAO access to intelligence information, why have dozens of GAO analysts (73 of them as of March 2008) been granted SCI security clearances that authorize such access?

“The [OLC’s] basic legal premise — that GAO lacks legal authority to review intelligence matters — is simply wrong,” one congressional official told Secrecy News.  “To make matters more interesting, the 1988 OLC opinion is based on an old, and in my opinion misguided, GAO effort to get raw intelligence related to the Noriega mess.  How it applies to GAO’s current efforts to conduct a human capital review at FBI is baffling.”

“The fact that the Obama Administration is trying to block GAO from doing essentially the same work it did under the Bush Administration is a stunning turn of events that no one expected,” the official said.