from the FAS Project on Government Secrecy
Volume 2010, Issue No. 64
August 5, 2010

Secrecy News Blog:


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 stating that the GAO was not entitled to the requested records on Panama and Noriega. Not only that, but the opinion (written by then-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. "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.


For one year following their employment, all former government employees are prohibited by law (18 U.S.C. 207c) from contacting employees of their former agency for the purpose of influencing their official actions.

A 2006 legal opinion from the Office of Government Ethics (OGE) said this means that former CIA employees cannot contact current CIA employees for purposes of seeking official action, even if those current CIA employees are detailed to another federal agency. Prior to the OGE opinion, the CIA had disputed that the law extended to contacts with CIA detailees at other agencies.

"One certainly could envision circumstances in which a former senior CIA employee might have the opportunity to use his or her former position to influence a current CIA employee on detail to another agency in the Intelligence Community," wrote OGE General Counsel Marilyn L. Glynn in her opinion prohibiting such contacts.

The OGE legal opinion was written in response to a request Steven Bradbury of the Justice Department Office of Legal Counsel. The circumstances that prompted the inquiry are not known, nor is it known if the OLC itself issued any further guidance on the subject. The 2006 OGE opinion was released last month under the Freedom of Information Act.


"Several events this past year -- the Fort Hood Shooting and the attempted bombings on Christmas Day and in Times Square -- highlight challenges, successes, and gaps in our ability to effectively share and access information," wrote Kshemendra N. Paul, the program manager of the ODNI Information Sharing Environment (ISE) in a new annual report to Congress on the current state of intelligence and threat information sharing.

"Looking back to the events of September 11, 2001, we have come far in our sharing of and access to information across boundaries organizational boundaries and mission domains. Yet much remains to be done to support the frontline," Mr. Paul wrote.

The information sharing initiative is focused on overcoming barriers to communication within the government, not on public disclosure. But sharing ought to include the public too, the report suggested at one point.

"Most of the work of building the ISE to date has been aimed at expanding information sharing across all areas of government in the U.S. and, to a lesser extent, with private sector organizations and foreign partners. As the ISE continues to evolve, however, we recognize that to support the Administrationís commitment to openness and transparency, we must extend those efforts to include the American public as well," the new annual report to Congress said (p. 57).


The next issue of Secrecy News will be published the week of August 16.


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

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