Submitted by bjoe, Mar 22, 2007 22:57

go to link if you cannot open pdf file

http://pogoblog.typepad.com/pogo/2007/03/past_as_prologu.html

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Past as Prologue: GAO Access and the FBI

Michael Ravnitzky has provided POGO with some Federal Bureau of Investigation (FBI) documents from 1993 and 1994 (pdf) he received through the Freedom of Information Act. In August 2004, FBI Director Louis Freeh, reiterating directions sent out during his predecessor Acting Director Floyd Clarke's tenure the year before, tells his field office Special-Agents-in-Charge and Legal Attachés to control and reduce GAO access to FBI documents (pdf):

In the past, GAO [Government Accountability Office] has attempted to make direct contact with various Field Office, Legat [Legal Attachés], and FBIHQ [FBI Headquarter] personnel without coordination or approval of FBIHQ. Interviews of personnel, disclosure of information, or dissemination of documentation should not take place until the proper notification from GAO has been submitted to and coordinated by OPCA [Office of Public and Congressional Affairs] at FBIHQ.

GAO is presently conducting several different audits that directly or indirectly involve the FBI. While each of these audits has been approved and coordinated by FBIHQ, each subsequent audit must also be approved and coordinated by OPCA, even if the same GAO staff and FBI personnel are involved in the new audit. No documentation or additional interviews are to be given to GAO without coordination and authorization by FBIHQ.

Despite instructions from FBIHQ, GAO often will ask for documentation and more information than they are authorized to receive. For example, there have been a number of requests from GAO for information relating to pending investigations. As a matter of longstanding policy, FBIHQ will continue to deny GAO access to any information that will identify pending cases. GAO is not to be given direct and unlimited access to our files...

This might as well have been written yesterday.

Ironically, in 1997, it was Freeh who called the FBI "potentially the most dangerous agency in the country" if it is "not scrutinized carefully." Freeh also called for more congressional oversight.

Months before the attacks on September 11, 2001, the Senate Judiciary Committee held a hearing on the FBI entitled "Oversight of the FBI" (pdf). One of the witnesses, Norman Rabkin of the Government Accountability Office (GAO), Congress' investigative arm, testified that:

While things go smoothly on occasion, on many other occasions our access at the FBI has been difficult, resulting in us having to follow cumbersome procedures to meet with Bureau officials and get basic information about their programs and activities. We have had access issues in a number of agencies over the years. However, across law enforcement-related agencies, FBI access issues have been the most sustained and intractable.

Rabkin also remarked that the last time the GAO testified on access problems at the FBI and Justice Department was in 1991 (pdf).

A month later in July 2001, two House Government Reform subcommittees held a joint hearing entitled, "Is the CIA's Refusal to Cooperate with Congressional Inquiries a Threat to Effective Oversight of the Operations of the Federal Government?"

There the GAO's Henry L. Hinton, Jr. stated:

We have broad authority to evaluate CIA programs. In reality, however, we face both legal and practical limitations on our ability to review these programs. For example, we have no access to certain CIA "unvouchered" accounts and cannot compel our access to foreign intelligence and counterintelligence information. In addition, as a practical matter, we are limited by the CIA's level of cooperation, which has varied through the years. We have not actively audited the CIA since the early 1960s. (emphasis POGO's)

Then 9/11 occurred and though there were important exceptions, Congress as an institution did not express much interest in the decades-long issue. In fact, GAO access took some big hits over the course of 2001 and into 2002, especially in regards to the battle it lost over access to Vice President Dick Cheney's Energy Task Force records, partly because its main Congressional support was in the minority at the time.

Whistleblowers and the families of 9/11 victims need to be given particular credit for what was done in those years. But finally, as can be seen in the muscle flexing of House Government Reform Chairman Henry Waxman (D-CA) (pdf) in the U.S. Attorney firing investigation, though this battle is about Congressional access more generally, Congress is coming back.

GAO access at the FBI and CIA are still problems however. Though Congressional committee staff can provide a great deal of oversight firepower, Congress' large and professional investigative arm, the GAO, needs access to information. As Hinton stated, the GAO has not "actively audited the CIA since the early 1960s." And the problem with the FBI goes back to at least 1941, when then-Attorney General Robert H. Jackson, representing J. Edgar Hoover's FBI, wrote in an opinion that:

It is the position of the Department of Justice, restated now with the approval and at the direction of the President, that all investigative reports are confidential documents of the executive department and that congressional or public access thereto would not be in the public interest.

Though it still had not been named as "Executive Privilege," Jackson was relying on the same concept, which would not become a mature concept until the Cold War:

This accords with the conclusions reached by a long line of predecessors in the office of Attorney General and with the position taken by the President from time to time since Washington's administration; and this discretion in the executive branch has been upheld and respected by the judiciary.

As recent developments have made clear, we need more oversight of the FBI and other national security agencies. The GAO serves the Congress, but it needs Congress' support too.

-- Nick Schwellenbach

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