GAO Audits and Poppy Bush’s Covert World

Steven Aftergood has an important update on the continuing saga of whether or not GAO can conduct investigations of intelligence activities. He explores the source of current restrictions on GAO review: a 1988 OLC opnion written by Douglas Kmiec.

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).

Aftergood goes on to explore the troubling current use of this 1988 opinion protecting raw intelligence to protect more function-oriented reviews of Executive Branch counter-terrorism activities.

But I couldn’t get by the multiple levels of irony of the OLC opinion itself.

The OLC opinion was written in response to a June 23, 1988 letter asking to what extent GAO could investigate whether Executive Branch foreign policy making adequately accounted for the illegal activities of top foreign officials like Manuel Noriega.

This memorandum is in response to your request for the opinion of this Office on whether, or to what extent, the Administration has a legal basis for declining to cooperate with the pending General Accounting Office (“GAO”) investigation concerning U.S. foreign policy decisions with respect to Manuel Noriega. In its June 23, 1988 letter to the National Security Council, GAO described the nature and purpose of the investigation: In order to evaluate whether “information about illegal activities by high level officials of other nations may not be adequately considered in U.S. foreign policy decisions . . ., the General Accounting Office is undertaking an initial [*2] case study of how information about General Noriega was developed by various government agencies, and what role such information played in policy decisions regarding Panama.” As stated in the National Security Council’s response to GAO of July 13, 1988, representatives of GAO have made it clear that GAO’s “three areas of interest [are] intelligence files, law enforcement files, and the deliberative process of the Executive branch, including internal communications and deliberations leading to Executive branch actions taken pursuant to the President’s constitutional authority.”

The GAO investigation, then, would have been a part of Congress’ (and, to a significant extent, John Kerry’s) larger attempt to investigate BCCI and Noriega and CIA involvement in the drug trade. Just as importantly, the request and the August 16, 1988 response would have taken place in the shadow of a Presidential election that would result in Poppy Bush’s election. The same Poppy Bush who seems to have had a role in CIA operations in Latin America in the 1960s. The same Poppy Bush who led the CIA in 1976. The Poppy Bush with ties to Iran-Contra. And the Poppy Bush who would invade Panama to overthrow our former client in the first year of his presidency.

I can imagine why candidate Poppy wouldn’t want GAO to be sniffing into how much the CIA, say, knew about Noriega’s ties to drugs, money laundering, and ultimately, the CIA.

Fast forward to the recent development Aftergood cites as proof that the OLC opinion makes no sense: a recent DOD Instruction that permits GAO access to intelligence information (though not without reserving the right of the Executive Branch to make need to know determinations).

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?

I’m considerably less optimistic than Aftergood about what the DOD directive means.

But I am amused by the additional ironic twist it adds to this story.

After all, the DOD directive was signed under the ultimate authority of a guy named Robert Gates. Robert Gates, then, is the guy promising new openness on GAO oversight.

The same Robert Gates, at the time in 1988 when GAO unsuccessfully tried to investigate what ultimately would have turned out to be CIA’s ties with Noriega’s illicit activities, was Deputy Director of CIA. He’s the guy who either knew (in the case of Iran-Contra) or signed off on Reagan-Bush activities in Latin America. (Gates was in NSC for the lead-up and invasion of Panama.)

Sure, it’s appalling that this expanded interpretation of GAO restrictions is happening under Barack Obama; you would have expected it to take place under Poppy’s son.

But aside from that, it’s just as troubling that this 1988 OLC opinion pretty obviously used to protect details that would be inconvenient to Poppy Bush’s aspirations are now being used to hide details of Obama’s counterterrorism programs.

Update: Fixed Gates in “NSC” during the Panama invasion, not NSA.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. klynn says:

    This is a fantastic post. You and Aftergood should turn this into a book.

    Amazing ties.

    …it’s just as troubling that this 1988 OLC opinion pretty obviously used to protect details that would be inconvenient to Poppy Bush’s aspirations are now being used to hide details of Obama’s counterterrorism programs.

    The same Robert Gates…

      • PJEvans says:

        So he benefits from this by, effectively, being protected from the consequences of protecting his previous bosses?

        I didn’t vote for this kind of crap, y’know? Either Mr O was lying like a rug all through his campaign, or he’s effing clueless about the government and his job. Possibly both.
        And I’m not voting for anyone he supports if there’s any kind of adequate alternative (including third party).

        • emptywheel says:

          Sorry, not clear: who benefits?

          Kmiec? I think he’s mostly incidental to this story, though interesting as a historical note (though I invite Mary to correct me on that count because I bet she can).

          Obama? He’s just trying to use existing rules to beable to expand executive power. Same end goal as Cheney/Bush (even if we’re supposed to “trust” him), just done through arguably legal means as opposed to illegal ones.

          • PJEvans says:

            I was thinking Kmiec. (But Mr O also benefits, by getting all that executive power that’s been accumulating quietly, and reaching for more.)

            • DavidKaib says:

              The national security state is vast, and is lucrative for contractors, investors and former executive, legislative and military officials. The secrecy that surrounds it protects the autonomy of plenty within government, and the ability to make money for many without (or soon to be without). The efforts of those in power today to protect the secrets of yesterday will help ensure that the secrets of today will be protected in the future.

              In short, you cannot boil down these larger social dynamics to any individuals.

              That is not meant to absolve anyone for their own wrongdoing – it is to say that individual level explanations are insufficient. Lots of people benefit.

  2. DavidKaib says:

    Without taking anything about from the herculean efforts of Obama and his administration to avoid accountability when it comes to intelligence, military and foreign policy, there is also the matter of Congress. Congress has ultimate responsibility for these policy areas (regardless of what most elites think) and they are responsible for spending money, which comes with it the requirement that they make sure its being spent well. It would be one thing if Obama was fighting tooth and nail against a mobilized Congress demanding that it be allowed to its duty, but that is not the case. While it would not solve anything, making sure that members of Congress get heat for this sort of thing would help undermine this idea that president can act without any (or for the more reasonable, any effective) limits.

  3. Jeff Kaye says:

    Great article, and a reminder that the failures of accountability go back decades, to the years of Iran-Contra, Vietnam, and I’d say all the way back to the immediate post-WWII era.

    And, as you point out, the current battle by the Obama administration to maintain secrecy for the intelligence activities of the executive branch, even from other branches of government, is but a continuation of what has been happening for decades. We should remind ourselves that no one could probably get to be president unless his or her commitment to such executive fiat weren’t pledged in advance.

    Thanks for reporting on this. I don’t know what to think about the directive, btw, that Aftergood pointed out. Having pursued a number of them lately (on another topic soon to be reported), I can say they are among the most opaque documents I have ever read.

  4. bgrothus says:

    I recall those days. It was still possible to view the motorcade from the curb in front of the event. . .Poppy was in town, and we had a demonstration that involved lots of signs linking him to Noriega, coke and CIA. That was when he was the VICE president. He had to drive by all the signs as well as the great unwashed. Of course in the intervening years, that sort of “official torture” has been halted entirely.

    Nice linkage to the current years, Jim White.

    • BoxTurtle says:

      Of course he wouldn’t. All the evil is Rahm’s doing.

      Boxturtle (The lemonaid koolaid is the best, but they all work about the same)

  5. dbmetzger says:

    According to a recent article in Wired the investment arms of the CIA and Google are both backing a company that monitors the web in real time — and says it uses that information to predict the future.

    Or as Wired wrote: Twitterati and other netizens should already know that their Internet musings are public and could potentially become fodder for intelligence analysts. But now U.S. spy agencies have officially invested in a software firm that monitors social media and half a million web 2.0 sites daily.

    Does this sound ominously familiar? Go back to 2003 and experiment initially called the Total information awareness program which was quickly changed to Terrorism information awareness so as not to give the American public the impression that the program would be indulging in domestic spying or “data mining”. the Pentagon also initiated the Policy analysis Market. According to the NY Times

    The Pentagon office that proposed spying electronically on Americans to monitor potential terrorists has a new experiment. It is an online futures trading market, disclosed today by critics, in which anonymous speculators would bet on forecasting terrorist attacks, assassinations and coups.

    Traders bullish on a biological attack on Israel or bearish on the chances of a North Korean missile strike would have the opportunity to bet on the likelihood of such events on a new Internet site established by the Defense Advanced Research Projects Agency. The program fell under the control of Adm. John M. Poindexter, President Ronald Reagan’s national security adviser. This aspect of the initiative was called the Policy Analysis Market.

    Sounds like deja vu all over again

      • readerOfTeaLeaves says:

        Well, it must have been. Don’t all suicides wrap anchors around their ankles…? /s

        The GAO investigation, then, would have been a part of Congress’ (and, to a significant extent, John Kerry’s) larger attempt to investigate BCCI and Noriega and CIA involvement in the drug trade. Just as importantly, the request and the August 16, 1988 response would have taken place in the shadow of a Presidential election that would result in Poppy Bush’s election. …The Poppy Bush with ties to Iran-Contra…

        I’m going way, wayyyyyy out on a limb to note that it seems at least possible that Gates might be willing to get some kind of accountability into the DoD.

        We’ve never heard what happened with that ‘flight over Syria’ in Sept 2007; who paid for that thing? Why was a USAF bomber flying around with live nukes, headed for the MidEast, when — if reports are to be believed (okay, we don’t actually believe them, but still… suppose they mean something) some random USAF employee spotted the oddness of nukes sitting on a runway in ?LA? Gates fired some high level USAF personnel over that one, which shocked the hell out of me.

        Also, Gates came in to clean out CheneyRumsfeld’s little nest of vipers, under Wolfowitz, Cambone, Feith, etc, etc. Perhaps he spotted some ‘bad bookkeeping’ as enabling the sort of skulking about that funded Larry Franklin’s heading to Rome and wherever else for those little Ghorbanifar tete-a-tete’s…? Perhaps Gates may have concluded that in the interests of keeping an eye on your own DoD, it might be worth signaling to US and allies that… someone might actually be able to look at the books.

        I am skeptical that this might really happen, but in at least two instances — that Sept 2007 mystery, and the CheneyBots — Gates has conducted what appears to be a ‘housecleaning’. So perhaps he’s seen how failure to conduct oversight leaves us sitting ducks for the perversions of the CheneyBots and their incestous off-the-books pals to sabotage and sidetrack defense policies.

        It wouldn’t be any more strange than some of the other things that have happened the past five years.

        • prostratedragon says:

          I certainly had the impression that his DOD appointment was part of a cleanup. And there does seem to have been less walkabout since his arrival, apart from one or two low percentage shots as noted. Mustn’t kill off the host, you know.

        • bobschacht says:

          We’ve never heard what happened with that ‘flight over Syria’ in Sept 2007; who paid for that thing? Why was a USAF bomber flying around with live nukes, headed for the MidEast, when — if reports are to be believed (okay, we don’t actually believe them, but still… suppose they mean something) some random USAF employee spotted the oddness of nukes sitting on a runway in ?LA? Gates fired some high level USAF personnel over that one, which shocked the hell out of me.

          It was a runway in Texas, not LA. At a military base that is the usual jump point for the Middle East. Shocked the heck out of me, too. But I think Gates only fired some middle-level people. Now, if you think this was a case of mid-level incompetence, then Gates took out the “high level USAF personnel.” But if you think Cheney, or Cambone, or one of the other neo-cons was orchestrating this thing from the sidelines, they escaped.

          I’d like to see Congress hold some hearings at which the guys Gates fired are subpoenaed, put under oath, and asked a lot of pointed questions.

          Well, I can dream, can’t I?

          Bob in AZ

    • PJEvans says:

      In your dreams, because a real audit would turn up so much fraud and waste that the GOoPers would be marching on DC with pitchforks and torches. (And we just can’t have that. /s)

  6. captjjyossarian says:

    The GAO investigation, then, would have been a part of Congress’ (and, to a significant extent, John Kerry’s) larger attempt to investigate BCCI and Noriega and CIA involvement in the drug trade.

    That would have been nice, people don’t know much about the BCCI scandal. It barely made the radar with most of the public. But it’s like the same team of gremlins comes out of the woodwork with all of these scandals and throw a wrench into the investigation.

    BCCI – Clark Clifford was caught up in this. The same Clark Clifford that drafted the legislation creating the CIA.

    Iran/Contra – Stanley Sporkin was the CIA’s general consul during this time. He went on to work for Enron’s lawfirm during thier difficult period and later worked for BP handling whistleblowers.

  7. bobschacht says:

    By the way, anyone else get the idea that Poppy has a stronger network of behind-the-scenes intelligence operatives than his son has? And that they’ve probably co-opted the guys GWB used to give orders to (except Cheney, Cambone, Wolfowitz, Eliot Abrams et al; they got their own thing going.)

    I wonder if they’ve got kind of a shadow government going. So far as I can tell, there is no counterpart from the Democratic side. If there is anything, it would be from the Clinton’s network. But who? Sandy Berger? (Ha-ha-ha-ha-ha-ha! Ooo, that’s a good one.)
    Zbigniew Brezinski? He’s probably part of Poppy’s team by now.
    Madeline Albright?
    Richard Holbrook?

    Bob in AZ

    • captjjyossarian says:

      So far as I can tell, there is no counterpart from the Democratic side.

      It might be more like one big football team. Republicans on offense, Democrats on defense(damage control) and Cheney’s crowd handling the special teams.

  8. klynn says:

    Some great comments which beg answers.

    There may only be 30 comments but all the questions and comments boil down to the flow of power.

    And we need answers in order to save our Constitution.

  9. Mary says:

    Uber good post, EW.

    I can’t find much to quibble about over Kmiec being more than an interesting name to tie to the opinion, despite his more usual ability to be the yin and the yang, the ping and the pong, the cheech and the chong. ;)

    OT – but I did find something kind of interesting that I think tangentially supports him as my pick for Yoo’s mysterious law prof source. I don’t know if you’ve seen this:

    from when Kmiec was angling to be Obama’s (not just my) favorite Maltan:

    DIA: Lastly, you were once head of the Justice Department’s Office of Legal Counsel (OLC). What is your opinion of the OLC memos that declared the Bush administration’s interrogation policies to be legal?

    Mr Kmiec: What most depresses me about the current matter is how it tarnishes that once-great office. It is an office very much needed for the well-functioning of the presidency, and it has been badly wounded. OLC’s best practices seem to have been discarded or forgotten in the torture matter, and it did not serve the president, the CIA or, ultimately, the nation well.

    The recent release of the unredacted OLC memos has opened many eyes, mine included. The legal “analysis” in the redacted memoranda earlier released did not give graphic detail of the techniques. As a then-law school dean in Washington, DC, I became privy to Bush White House briefings encouraging all those in attendance to defend the president in public commentary. Trustingly, I did, but now greatly resent that the most pertinent details were withheld. Reading my own commentary leaves me grievously embarrassed in light of the recent disclosures. I find what I was told and then repeated absurdly indefensible. Mea culpa.

    I like the way he just plops into the conversation that the almost-as-paranoid-as-Obamaco Bushies let him beomc privy to briefings bc he was “a then-law school dean in Washington, DC” Sure – all law school deans in DC were made privy to WH briefings and then jumped on board to “trustingly” defend the President – yeah, right, happens like that all the time. What’s especially revealing about that is how frickin often Kmiece was used as a source for media and as a WITNESS for Congress and I sure don’t recall him ever mentioning to either institution that his comments or TESTIMONY were generated fresh from his WH briefings where he promised to defend the Prez.

    And if, in addition to being a WH prepped “independent” witness to Congress, he also was an undisclosed contributor via his input with Yoo to the torture policies and memos, that would have been kindasorta worthwhile to know – but it’s all covered up in the OPR release IIRC (I admit I’ve never read it all – mostly your pieces and some text surrounding your references, so I’m relying on my recollection that you said they never give the name of the law prof). A former two Presidency head of the OLC who happens to be a conveniently locaed in DC source and a participant in WH briefings to boot – I can really see Yoo opting for Kmiec as his go-to, but that jmo.

    @26 – I’d like to see anyone other than Lindsey Graham asking pointed questions, esp someone human and not owned by pharma or defense, but it’s not going to happen. They must have a helluva playground monitor in DC who enforces the rules – no running with pointed, objective questions

      • Mary says:

        He could have his own chapter in the “What do you do with Unlawful Bellingerants” book, coming soon to a bookstore near you. As long as you use the OLC definition of “soon,” as in, never. ;)

  10. Leen says:

    Accountability, oversight..who would apply such concepts? Accept when it comes to peasants in this country. A different system for those in control

  11. Mary says:

    Just for fun – some of my favorite Maltan’s observations:

    *Comey’s testimony about the hospital showdown was “staggeringly histrionic.”

    *Attorney General Gonzales noted as having a “reasonable legal mind”

    *Impeachment of Bybee would be “ugly and distracting” especially since he’s such a “gentle” guy.

    He was a huge advocate for unconstitutional surveillance as well and probably helped set Obama’s easily directed feet on the “right” path.

    One interesting quote from him, especially in light of all his WH briefings he chose not to disclose to reporters (although there, he’s in the company of Zakaria who didn’t apparently feel his participation in WH strategerizing was something to note in his Rah Rahs to war) – this quote dealing with a piece of his where he was trying to look better again in light of the torture river he was swimming in, by arguing that the Bush WH was overusing Exec Priv in the USA firings:

    Second, advisement of the president rarely depends upon the existence of executive privilege. Its defenders claim that, without the privilege, executive officials won’t give candid advice to the president or to their superiors who answer to the president. (The jurisprudence that has grown up in the District of Columbia federal courts over how far down the food chain the privilege should apply is opaque, to say the least.) Yet this claim is simply untrue, based on my own experience giving counsel to two presidents and the experience of others in like position. Advisors afraid to have their policy judgments held up to the light of day probably ought to rethink public service.emph added

    That was a Cheech moment, not to be confused with Chong comments earlier about the hospital showdown, where he took Goldsmith and Comey et al to task with:

    Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.

    EW – from that op piece, though, comes some of what would be at issue imo re: the SOX types of claims (and btw, tick tock, tick tock, on SOL issues for any other kinds of claims) even if they did construe the statutory adoption into the crim code of the SOX crim penalty provisions as not being limited to public corporations – what you would still have, since DOJ wants to cleanse Congress and Courts for their legitimate roles and interests, is an issue of agency v. agency being played out in an criminal court proceeding. That’s got some deeper issues:

    Executive agencies can’t sue each other over contested points of law, since they all work for the president. To bring a case in federal court, a litigant needs to be concretely adverse to his opponent. One agency may prevail over another, but if it does, it is not by judicial decree but presidential judgment, to which both are answerable.

    This issue of actually adverse is one that came up in the Libby trial as well and is why I HATE in-housing investigations. Fitzgerald at that first presser announcing the charges against Libby seemed so honest and forthright that I was swayed for awhile, but in the end I think, as his answers to Congress about his appointment having only the trappings-and not the reality – of independence support, I should have stuck with my first reaction.

    DOJ can not in-house any investigation – when you’re investigators are people who knowingly and without qualm work for torturers and assassins, you just aren’t in good company.

  12. emptywheel says:

    Well, Mary, I’m glad that you threw more Kmiec tinder onto the fire, even if you can’t come up with some reason to make this OLC opinion more interesting.

  13. pdaly says:

    wrt to Mary’s tick tock comments above,

    What about having, in addition to the timelines links, the SOL tickdown clocks, with the relevant expiring underlying crime labeled over the clock and links to the relevant past posts?