GAO to Have Oversight of Most-Secret DOD Programs?

Steven Aftergood reports that DOD signed a directive last week allowing for Government Accountability Office audits of Special Access Programs.

[A] Department of Defense Directive issued last week explicitly allows for GAO access to highly classified special access programs, including intelligence programs, under certain conditions.The newly revised DoD Directive 5205.07 (pdf) on special access programs (SAPs) states that:  “General [sic] Accountability Office (GAO) personnel shall be granted SAP access if:  a. The Director, DoD SAPCO [SAP Central Office], concurs after consultation with the chair and ranking minority member of a defense or intelligence committee [and] b. The GAO nominee has the appropriate security clearance level.”

The issue of GAO oversight is one of the two issues over which Nancy Pelosi is holding up the intelligence reform bill. In theory, GAO oversight would make it harder for the President to sneak through entire programs via appropriations and harder for corrupt members of Congress to do what Duke Cunningham did–put through appropriations that benefit themselves.

But I’m less sanguine than Aftergood that this directive–as welcome as it is–will do the trick.

To a significant extent, considering the dominance of defense intelligence agencies within the intelligence community, one could say that it now has been so recognized.  Only the details remain to be negotiated.

After all, this gives both key members of Congress (the leadership of either an intelligence or defense committee) and the President (because the GAO nominee would require a security clearance–remember that Bush postponed oversight of his illegal wiretap program by denying members of the Office of Professional Responsibility security clearances) veto power over GAO oversight on a program by program basis. Furthermore, it’s not clear that requiring the leadership of “a” committee to approve will do the trick, since many programs have been put through on defense appropriations without revealing them to the intelligence committees.

Finally, this follows a favorite Obama tactic: to negotiate changes Congress wants by implementing them in such a way that the Executive Branch retains the ability to reverse those changes. The whole point of GAO oversight would be to impose a check on the Executive. Whereas, done in bad faith, this could create nothing more than the illusion of a check on the Executive, one that the President might use to try to get Congress to wield on its efforts to impose real oversight.

So while this might bring more transparency and oversight to programs which all parties agree can withstand such oversight, I’m not sure it does much to the address the way in which separation of powers has been manipulated to conduct all sorts of mischief in taxpayers’ names.

  1. JohnLopresti says:

    There seem to be hybrid committees besides simply the binary of defense or intell, namely, for example, the newly constituted subcommittee of senate judiciary committee, the subcommittee chaired by Cardin, ranking Kyl, named **Subcommittee on Terrorism and Homeland Security** [composition]. I wonder what process would provide a revised DoD reg to allow for such newly created committees* inclusion in the new GAO oversight directive.

    • fatster says:

      Am I wrong or naive to wonder that we might not be at this ridiculous point if Congress decided to deliberately and energetically exercise its oversight responsibilities on behalf of the people as it is supposed to do?

      • emptywheel says:

        Frankly, I think the problem is getting a majority of Congress. There actually does appear to be bipartisan consensus on the intelligence committees supporting oversight now (partly bc we have a Dem president, and partly bc as bad as Kit BOnd is, he’s still better than Pat Roberts). But I don’t think there’s a bipartisan consensus in Congress supporting it–too many Congressman are getting too many metaphorical blowjobs from contractors and foreign lobbyists.

        • fatster says:

          Keep on publicizing this stuff, EW. Middle ‘Murka may not read this blog (at least not in any significant numbers), but from here the word spreads. We the People (or Citizens, as Jefferson wrote after his correction in the Declaration of Independence, and which I’ll try and remember to use from here on out since the RW has done bad things with “We the People”) have a critical role to play in getting our Congresscritters to perform.

  2. BoxTurtle says:

    Silly me! I thought it was congresses job to exercise oversight. If we have programs out there so secret that the members of the intelligence committe don’t have clearence to know about them, there’s a problem.

    Boxturtle (Silly me! I assumed that congress WANTS to exercise oversight!)

  3. earlofhuntingdon says:

    Deflating the tepid forces of Congressional reform by giving in to the appearance, but not the reality, of reform? Who says the ghost of Karl Rove ever left the White House?

  4. Synoia says:

    In a clarification of the GAO oversight president Obama has released the security requirements for the member of the GAO to audit secret programs.

    Each member of the GAO must have a security clearance signed by three current presidents.

    In a related move the budgets and financial records of the White House, DOJ, DoD, HHS, and Homeland Security have been deemed secret in toto.

  5. Jeff Kaye says:

    The more oversight the better, but I’m in no position to judge how good a job GAO has done. I don’t think you noted Aftergood’s point that Obama is threatening a veto if this provision gets written into the intel bill. I think the Obama administration simply doesn’t want GAO oversight written into law. If DoD wishes (and has) released directives or instructions that allow such oversight, that’s one thing. It can always be changed. (In fact, this new directive replaces an earlier directive from 2006.) That would be harder if it were written into law. Pelosi is right to want it made mandatory, I suppose.

    However, note the inevitable loophole, written into 10 USC 119, which is the law on congressional oversight of SAPs:

    The Secretary of Defense may waive any requirement under subsection (a), (b), or (c) that certain information be included in a report under that subsection if the Secretary determines that inclusion of that information in the report would adversely affect the national security.

    Now, the new directive, 5205.07, indicates that (and btw, Reference (c) in quote is a reference to 10 USC 119) (bold emphasis added):

    Members of Congress assigned to designated defense and intelligence committees shall be authorized access to DoD SAPs within the respective committee’s SAP oversight role, except for waived programs pursuant to Reference (c). Unless approved by the Secretary or Deputy Secretary of Defense, only the chair, the ranking minority member, and the staff directors of the defense and intelligence committees shall be authorized access to waived SAPs within their committee’s respective SAP oversight role.

    The fight to have all committee members authorized access is a key feature of the fight over oversight, going back to the Church and Pike committee recommendations, at least. Also, that’s how Pelosi and others have gotten burned when they weren’t either chair or a ranking member. If they are going to waive, maybe GAO or someone will be there to carry the ball.

    I think Aftergood doesn’t get the difference between a DoD directive and a legislatively crafted law. Because he doesn’t seem to understand why Obama would threaten a veto over a policy that (supposedly) DoD embraces.

    Still, as long as these loopholes are written into the law, where “national security” can be raised as a reason to waive all oversight, then we are stuck, no matter how you look at it, with the same rotten bargain. So, the SecDef can “waive any requirement”… and who is the Secretary of Defense? Eighteen months into the Obama administration, that would be Bush’s SecDef, Robert Gates. Just a reminder…

    • kindGSL says:

      Well, Congress has a very serious problem.

      As a tax payer I don’t want to PAY for it.

      And as a freelance reporter, I ask why congress is funding criminal acts and war-crimes with taxpayer money, that it is operating NO oversight over. My understanding of that situation is that it is fully unconstitutional. In other words, organized crime.

      Add to that that the funding is being used to commit wholly illegal war crimes and crimes against humanity, and I think congress has a very serious problem.

      • kindGSL says:

        Depleted uranium and it’s effect on our troops, untitled informative video (31 minute)

        I have received flyers from two local water suppliers as I live on the boundary (CCWD, EBMUD) and they both list uranium quantity, BUT it is explained as “natural weathering” from rocks, NOT as fall out from use of our illegal war weapons, nuclear ‘tests’ or nuclear power plant “planned” releases.

        We are being systematically poisoned with nuclear poisons and the government is completely covering it up. Even our water districts are lying to us about the danger and the source. As our world becomes more contaminated, the government just raises ‘normal’ background levels.

        This is personal to me. My niece was a soldier in the middle east (where she got sick) and my husband does field work on military bases, where they test these weapons. He is in complete denial about the hazard and enforces that attitude in our home. I think he is afraid of the military, either losing his business contracts or …

        Well, I guess we all are afraid, or total fools.