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Rethinking Intelligence: Interview with ​​​​​​Danielle Brian

Danielle Brian is executive director of the Project on Government Oversight (POGO), a non-profit organization that exposes government waste, fraud and abuse, and advocates for open government.

Published: July 14, 2014

Inter­view Tran­script

Q: Today I’m with Dani­elle Brian, who is the exec­ut­ive director of the Project on Govern­ment Over­sight, which is a non-partisan organ­iz­a­tion that looks at govern­ment waste, fraud and abuse, looks to expose it, and advoc­ates for more open govern­ment.  Can you tell me- this project is focus­ing specific­ally on intel­li­gence activ­it­ies and intel­li­gence agen­cies and national secur­ity efforts.  Can you tell me some cases the POGO has worked on that have exposed waste, fraud and abuse in the intel­li­gence and national secur­ity agen­cies?

Brian: Sure. Well, I mean the truth is because of the level of secrecy in intel­li­gence, I can’t say we’ve had a lot of activ­ity in the intel­li­gence agen­cies per se.  But certainly in the broader national secur­ity community from the Pentagon, of course our organ­iz­a­tion was by Pentagon whistle blowers, who were concerned about the kind of waste­ful spend­ing like the $7,600 coffee pot and the $2,600 toilet seat.  That sort of basic ridicu­lous over­pri­cing of spare parts at the Depart­ment of Defense, to the multi-billion dollar waste­ful programs at the Depart­ment of Energy’s National Nuclear Secur­ity Agency- they are the agency within the Depart­ment of Energy that runs all of our nuclear weapons labs. 

Q: And when there’s waste, fraud and abuse in these agen­cies how does that affect their effect­ive­ness in actu­ally accom­plish­ing their missions?

Brian: Well I mean the basic truth is that wasted money means that the money that is supposed to go to actu­ally perform the func­tion and mission of the agency isn’t happen­ing. It’s going to things that are either non-product­ive or even perhaps counter-product­ive.  Certainly what we see for example in the Depart­ment of Energy in the nuclear weapons labs is that you have programs that are redu­cing people’s confid­ence in the entire system.  And so it really has a bigger impact than just a waste of money.

Q: So these agen­cies have armies of internal compli­ance officers, audit­ors, inspector gener­als, privacy and civil liber­ties officers.  Why… how do those func­tion and why would some­body go to POGO instead of one those agen­cies?

Brian: Well one of the things that I have found really inter­est­ing and it’s sort of valid­at­ing to me, is that stud­ies are show­ing that even in the private sector, they’re find­ing that incid­ents of fraud is rarely actu­ally found by internal audit­ors.  It’s almost always from tips from whis­tleblowers, people who are inside the system who are aware of the prob­lem.  So why would that be true and… one of the things that I know from my own organ­iz­a­tion’s inde­pend­ent audits is that when you have an auditor come in, and they want to make sure that you have a receipt for a $500 dinner for example.  So if you have the receipt then its fine and the audit­ors are perfectly happy.  But no one’s saying well, why was there a $500 dinner and who are you having the dinner with?  And so it’s those people who have the under­stand­ing of the mission, the poten­tial comprom­ise of the mission by what’s happen­ing, and those are those whis­tleblowers. And rarely are people whose job it is func­tion­ing as an auditor are going to find that.  And so we’re find­ing that is also true for inspector gener­als.  Really, the most import­ant from our perspect­ive, insights they can get is often going to be from those insiders that come to them, the whis­tleblowers.

Q: And Congress obvi­ously also has over­sight respons­ib­il­ity under our Consti­tu­tional system. Perhaps even more import­ant, because they’re a check against exec­ut­ive abuse.  How would you rate the Congres­sional over­sight, and do you think they have the tools neces­sary to do their jobs in this envir­on­ment?

Brian: I defin­itely would give the Congress an F and I would blame the Congress itself for most of that poor grade.  But certainly, the agen­cies have taken advant­age of the Congress’s will­ing­ness to have this happen. And to give you an example… I mean this has been going on for years. We… I guess about eight years ago, I got a call from some­body on the Hill- this wasn’t even in the intel­li­gence community but it’s even more so with that community- and he said ‘I’m writ­ing this Free­dom of Inform­a­tion Act request for my boss and I wanted your advice.’ And I said, ‘But you’re in the Congress, why are you writ­ing a FOIA is the term for Free­dom of Inform­a­tion Act request?’ They didn’t under­stand that the Congress didn’t need to do that. But then what happened was the agency star­ted taking advant­age of this percep­tion that the Congress was allow­ing, to make it harder for the Congress to just demand inform­a­tion because it is the Congress, which is Article I in the Consti­tu­tion. And we’ve now seen it become abso­lutely the norm that the Congress accepts, that they don’t have the author­ity to just demand inform­a­tion by the end of the work­week.  And so, when you have the case of the intel­li­gence community, this is sort of the… the term… what would I call it…al­most delib­er­ate incom­pet­ence in a way when it comes to over­sight.  In the intel­li­gence community, what we’re seeing as that the commit­tees are just really so compla­cent when it comes to demand­ing inform­a­tion that they’ve become almost mean­ing­less.

Q: And do you have an example of that?

Brian: Well I mean certainly some of the great examples are what are happen­ing now.  As I’ve mentioned before, we at POGO from the outside, rarely get insights into what is happen­ing in the intel­li­gence community.  But when you have for example, the Snowden disclos­ures and you learn what has been happen­ing, and then you learn that actu­ally the commit­tees were told about it, but they were told in such in a way that they didn’t neces­sar­ily quite under­stand what they were being told.  But they accep­ted that they didn’t under­stand it.  That to me is really alarm­ing, where they’ve become more protect­ive of the agency than seeing them­selves as a check on those activ­it­ies. But then what’s really become inter­est­ing is what happened with the CIA and Senate Intel­li­gence Commit­tee, where there was actu­ally seri­ous over­sight that was being conduc­ted by the staff in the Senate Intel­li­gence Commit­tee. And they deserve a lot of credit for what they were doing.  But the CIA then sort of turned on them, and actu­ally sugges­ted that they were commit­ting miscon­duct in their over­sight role.  So this is sort of the first spark I’ve seen in a while that there’s a real hope that the commit­tees might start to be a little bit more aggress­ive then they have been in their over­sight.

Q: When the House and Senate Intel­li­gence Commit­tees were created, the role that was fore­seen for them was that they would educate the rest of Congress about what was going on in a way that protec­ted the national secur­ity secrets.  How have they done about educat­ing the rest of Congress about the activ­it­ies of intel­li­gence community, or the public for that matter?

Brian: Well certainly the culture has become one of ‘Just trust us, we know what we’re doing, we’ll handle it by the commit­tees.’  For the rest of Congress, let alone the public.  And when it comes to the NSA surveil­lance activ­it­ies, the defense that the House Commit­tee has had was ‘Well, we noti­fied the rest the Congress that they come to us and look at this not-very- well-explained provi­sion of what was happen­ing with surveil­lance.’  But the rest of the Congress didn’t really under­stand the signi­fic­ance of what they were being told, and so they largely ignored it.  That was half-hearted, at its best I think, on the part of the House Intel­li­gence Commit­tee.  But Wash­ing­ton is often a city where having inform­a­tion is some­times more import­ant than power.  I mean it is power, more import­ant than money and what you see in that world is… really such an aggress­ive effort to main­tain… secrets that no one else knows. It makes you more import­ant and that’s, I think, one of our biggest prob­lems.

Q: But there is a lot of money.  I mean this is a $70 billion a year industry and more so than in previ­ous eras, the involve­ment of private contract­ors in intel­li­gence work.  How does privat­iz­a­tion affect the calcu­lus on these issues?

Brian: This is one of the elements that’s most alarm­ing for us at POGO is that, you now have hundreds of thou­sands if not millions of people who are getting clear­ances, that are not a part of the federal govern­ment. And they’re work­ing for entit­ies whose purpose is not the public interest, but is the bottom line.  So that, on its face, is a little bit alarm­ing to us and just sort of… the vast expan­sion of that universe.  And then what happens is the capa­city for secrecy is even deeper in the private sector.  So those contract­ors, it is much harder for example to have any kind of access through the Free­dom of Inform­a­tion Act, and they also have the capa­city of hiding behind the Trade Secrets Act often.  So what’s already mostly secret in the govern­ment is even that much more secret when it’s in the private sector.

Q: And when we’re talk­ing about intel­li­gence activ­it­ies, clearly it’s crit­ical that they spend their money wisely. So when you see this waste, fraud or abuse it’s troub­ling.  But they also have enorm­ous power to invade the privacy and civil rights of Amer­ic­ans.  Do the lack of internal controls that you see when you’re look­ing at these finan­cial ques­tions raise concerns about how these agen­cies protect rights within this closed system?

Brian: Well what you’re rais­ing is this really danger­ous conflu­ence, because we’re talk­ing about private compan­ies that have a profit motive, and inform­a­tion is of great monet­ary value.  So when we know as we do now that all the tele­coms, for example, are part of our intel­li­gence appar­atus, the inform­a­tion that they’re gath­er­ing has great finan­cial value to them. And who is protect­ing us from having our inform­a­tion being essen­tially used by those compan­ies?

Q: And, what’s the effect of that on demo­cratic control of the intel­li­gence activ­ity?

Brian: One of the things that I think is… one of the many things that’s really alarm­ing about partic­u­larly this world of surveil­lance in the intel­li­gence community is, who is advoc­at­ing for the people?  If you have elements who have a real profit motive for being as aggress­ive as possible, because more means more money, and you have intel­li­gence agen­cies that have such a cloak of secrecy that it allows them to oper­ate with almost no account­ab­il­ity.  So what that means also is that they’re not held account­able when things go badly, when they’re not doing their job well, because we can’t tell that, because everything’s a secret.  But moreover back to… your ques­tion, when you have entit­ies that have a profit motive for being as aggress­ive as possible and you have agen­cies that have essen­tially no account­ab­il­ity, our worry is then who is look­ing out?  There’s no advoc­ate for the people whose inform­a­tion is really being taken from us.

Q: And of course the way our govern­ment is set up, one of the areas to seek redress if you feel your rights have been viol­ated is to go to the courts.  How have the courts been in this area?

Brian: The courts have really not been the inde­pend­ent broker that one would think they would be.  Gener­ally what you find is when the national secur­ity appar­atus comes to any of the courts, the courts will just accept whatever it is that the govern­ment is telling them.  So we don’t have… we very rarely have judges who chal­lenge the legit­im­acy of the claims being made by the govern­ment, and when there’s nobody on the other side to push the judge, it makes it that much less likely that our rights are being protec­ted.

Q: And how about in help­ing groups like POGO get access to inform­a­tion through the Free­dom of Inform­a­tion Act?

Brian: When it comes to… that’s an inter­est­ing ques­tion, let me think about it for a second… If it’s okay, I want to go back­wards just a little bit.  So one of the things that we’re find­ing is that the agen­cies, partic­u­larly the Depart­ment of Defense but I suspect this is likely the intel­li­gence agen­cies as well- have been rely­ing on non-stat­utory desig­na­tions to hide inform­a­tion. We some­times… some of us in our community call them pseudo-clas­si­fic­a­tion terms- terms like sens­it­ive but unclas­si­fied or for offi­cial use only. And so part of the prob­lem, is the courts can’t help us because they’re not actu­ally even based in law. So chal­len­ging those desig­na­tions which are being used, inter­est­ingly, even to with­hold inform­a­tion from the Congress or if the Congress gets them, then Congress feels that they don’t have the author­ity to turn them over.  So we have this whole layer of extra-clas­si­fic­a­tion that we’re battling. And then we of course, have the prob­lem with things that are actu­ally clas­si­fied- whether they’re often over-clas­si­fied and so then we are strug­gling, of course, through the courts to declas­sify or at least get redac­ted versions of them. And again the courts tend to accept whatever the govern­ment’s argu­ment is for what’s a national secur­ity secret.

Q: And how much of this secrecy do you think actu­ally contrib­utes to the prob­lem, rather than is just part of the prob­lem? In other words…

Brian: That’s really sort of an inter­est­ing ques­tion that I can’t… quantify.  Well one thing that’s inter­est­ing- we’ve had the former head of the federal agency that over­sees the clas­si­fic­a­tion system said that he thought… I believe it was some­thing like 90% of what’s clas­si­fied is over-clas­si­fied. And that’s actu­ally believ­able for those of us who work in the field, because the incent­ive for a person who is hand­ling inform­a­tion in the govern­ment is… you’ll get in a whole lot of trouble if you let out a secret but you’ll get in no trouble if you with­hold inform­a­tion from the public.  We’re hoping that that culture is slowly chan­ging but until now it really hasn’t.  So it makes sense that the incent­ive is always to over-clas­sify as just a matter of course.

Q: And so when you see some­thing like an Edward Snowden where there’s a massive release of clas­si­fied inform­a­tion- on the one hand that shows a lot of inform­a­tion that we had a right to know and the scope of the govern­ment’s inter­pret­a­tion of the law.  But how has the govern­ment reacted to that, as far as recog­niz­ing the need to release more inform­a­tion?

Brian: Well actu­ally it’s sort of complic­ated because right after that release, then the govern­ment actu­ally did redact and declas­sify inform­a­tion that they had previ­ously said we can never see. And the world hasn’t come to an end with our having seen that.  So on the one hand it did force the govern­ment to do some­thing they had said they could­n’t do before.  But they’re still certainly not acknow­ledging that what this shows is, there’s a huge amount of inform­a­tion that should never have been clas­si­fied in the first place.

Q: One of the primary sources of inform­a­tion for POGO in addi­tion to the Free­dom of Inform­a­tion Act, is govern­ment insiders who see the waste, fraud and abuse and report, blow the whistle on this type of corrup­tion.  Why would a whistle blower go to POGO rather than to the internal compli­ance appar­atus?

Brian: Gener­ally people come to us either because they’ve already gone through the internal compli­ance appar­atus and noth­ing has happened or they’ve seen others that have and they’ve seen that those people have been retali­ated against, and so they don’t trust it.  We’ve certainly seen some of the high profile cases… I think Tom Drake is a great example of a person who did go through all the proper appar­atus and… noth­ing was accom­plished and that was what forced him ulti­mately to go public and then of course we’ve seen what happened to him. [Drake was later crim­in­ally prosec­uted for viol­at­ing clas­si­fic­a­tion rules; the govern­ment dropped the most seri­ous charges on the eve of trial and Drake was convicted of a misde­meanor.]

Q: Do you think… the legal protec­tion­s…often we’ve heard people criti­cize Edward Snowden, that there were processes that he could have followed to be protec­ted.  

Brian: That makes me crazy when people, includ­ing the pres­id­ent of the United States say that, because they’re wrong.  So while the pres­id­ent had signed a pres­id­en­tial policy direct­ive that was going to begin the process of setting up a new system for federal employ­ees inside the intel­li­gence agen­cies- which was still just inside the agen­cies-  so we’re not really getting the kind of due process that other federal employ­ees now have.  Contract­ors were not yet covered.  There’s still a ques­tion about whether the new system that is in place will ulti­mately protect contract­ors but there is a hope that we think one of most import­ant reforms we believe is that those people that we were talk­ing about before—the privat­ized intel­li­gence community—those people need to have real protec­tion so they know that if they’re witness­ing the kind of miscon­duct that you can be witness to when you’re in the intel­li­gence community, they have every reason right now to think that they will not just lose their job, but likely be prosec­uted for doing anything to disclose it.  So those people desper­ately need to have the protec­tions but they don’t have them right now.

Q: They’re exempt from the Whistle Blower Protec­tion Act.

Brian: So the agen­cies as a whole are exempt from the Whistle Blower Protec­tion Act. And contract­ors are slowly becom­ing protec­ted, but again the intel­li­gence contract­ors are still exemp­ted from the contractor protec­tions also.

Q: Okay. A lot of Amer­ic­ans have expressed concerns about a lot of the post-9/11 policies that were put in place.  You mentioned the CIA Torture Report that the Senate Intel­li­gence Commit­tee is work­ing on, whether we’re talk­ing about rendi­tion, Guantanamo Bay…  What metrics do Amer­ic­ans have when their govern­ment says these things are neces­sary for national secur­ity, to meas­ure whether they’re actu­ally success­ful in improv­ing our national secur­ity?

Brian: That’s such an import­ant ques­tion and it’s so diffi­cult to answer because how do you… determ­ine whether some­thing is work­ing if you don’t know what’s happen­ing?  We have no way of know­ing… first of all what they’re doing or whether or not there are other things that should be happen­ing that aren’t happen­ing or it’s… an impossible situ­ation in the current struc­ture to have any confid­ence that the intel­li­gence community is doing a good job.

Q: And I mean here we are, the torture program was revealed by whistle blowers show­ing photo­graphs. And Congress, as you said, has been work­ing very hard even under some very seri­ous pres­sure by the agency push­ing back against their invest­ig­a­tion. And we still haven’t seen the report they’ve writ­ten.  How has secrecy affected the abil­ity of the over­sight mech­an­isms to work effect­ively?

Brian: Well I’ve certainly seen it in the fear that for example, Hill staff have, because they see what happens to those who are very honestly trying to care­fully protect national secur­ity secrets but let the public be aware that there is a prob­lem. And those people are prosec­uted under the Espi­on­age Act.  So Hill staff who are read-in to these programs have an under­stand­able fear that if they say some­thing, even without reveal­ing anything that’s clas­si­fied, they’re so afraid that some­thing might happen, that it really stymies their abil­ity to do their job as well as they could.

Q: And… who controls the secur­ity clear­ance for Congres­sional staff members?

Brian: You know I love that issue because about 25 years ago there was a chair of a Commit­tee- Jack Brooks on the House side. And he really under­stood the balance of powers and he said, ‘Why would I allow the exec­ut­ive branch to make a decision about who on my staff should have a clear­ance?’  And so he had the Capitol Hill Police actu­ally do the back­ground checks and decide who would be getting a clear­ance in his staff.  Now it’s abso­lutely a fore­gone conclu­sion that it’s accept­able not just that it’s the exec­ut­ive branch that chooses who on the Hill staff can have clear­ances- but that’s been outsourced.  So the contract­ors are more trust­worthy appar­ently then the Congres­sional staff are, in making these decisions.  So it’s a total break­down in the Consti­tu­tional balance of powers.

Q: And it would obvi­ously give the exec­ut­ive branch away to stifle any sort of Congres­sional criti­cism.

Brian: Total control. And as it is now, they have made decisions on how many people on a commit­tee are allowed to have what level of clear­ance.  And so it’s dramat­ic­ally redu­cing the number of- this is one of the really import­ant ways that the exec­ut­ive branch and the intel­li­gence community controls Congres­sional over­sight-  is they limit how many people can have a level of clear­ance on a commit­tee.  It should­n’t be up to them to make those choices.

Q: Every­one wants our govern­ment to be effect­ive and partic­u­larly the agen­cies that are respons­ible for our national secur­ity.  Then why is reform in this area so diffi­cult?

Brian: Well reform is always diffi­cult. But reform in this area is partic­u­larly diffi­cult- in part because reform usually happens because of public pres­sure, because of media and public scru­tiny and… outside advocacy. And it is nearly impossible for that to happen unless you have whis­tleblowers who come forward.  So you have this sort of flurry of interest in reform post-Snowden.  We are now seeing the Congress coming to a close and I don’t know that anything will have happened. And by the new Congress, I think we’ll possibly be back to people sort of being comfort­able with the status quo again.  So there’s sort of this moment after there’s a public release of inform­a­tion where you can really get reform but other than it’s so hard to get reform.

Q: One of the things that POGO does again to create more trans­par­ency is they have a data­base of cases that have shown waste, fraud and abuse.  Can you talk about the data­base?

Brian: We actu­ally were shocked to discover that the govern­ment actu­ally didn’t keep track of its contract­ors in terms of cases of miscon­duct.  So contract­ing officers across the federal govern­ment, when they wanted to get a sense of whether they should give a contract to company X, they didn’t have easy access to what was the history of that company in its other contracts.  And so we star­ted this data­base in part for federal govern­ment employ­ees who were making those decisions.  Since then the Congress actu­ally passed a law requir­ing the govern­ment to replic­ate our data­base but they’re still very, very minim­al­istic in what they include in their data­base.  But we have hundreds and hundreds and hundreds of cases of miscon­duct by federal contract­ors and what’s disheart­en­ing is that it rarely seems to have an impact on the big contract­ors getting more contracts.

Q: So you would that if a company had been caught defraud­ing the govern­ment that they would not be allowed to get future contracts.

Brian: You would think that.

Q: But that’s not the case?

Brian: That is not the case and it’s partic­u­larly not the case in the national secur­ity world.  The argu­ment that the agen­cies make is, ‘Well we’re so depend­ent on them because they’re the only people who can make this airframe or this ship,’ and whatever the case may be. But that is of course also the govern­ment’s own fault because in… I guess it was the 1980s, there was this flurry of consol­id­a­tion in this industry, and we were testi­fy­ing strongly against it for exactly this reason.  So as a result we have a few compan­ies that have a real mono­pol­istic control over the govern­ment.

Q: What reforms would you recom­mend?

Brian: I think the most import­ant reforms are to extend genu­ine whis­tleblower protec­tions to intel­li­gence agency employ­ees so that they can ulti­mately get to the courts, as well as certainly contract­ors.  I think that would make an enorm­ous differ­ence.

Q: And why is it import­ant that… you mentioned the pres­id­en­tial policy direct­ive that created an internal system.  Why is the abil­ity of a whistle blower to get into court so import­ant?

Brian: We have seen over time that the admin­is­trat­ive process for federal employ­ees before they were able to get access to the courts was remark­ably skewed against federal employ­ees and we think part of that is that there wasn’t that sense of over­sight by the courts at some point that was going to help to elev­ate the qual­ity of invest­ig­a­tion by the admin­is­trat­ive process.  So we’re hoping now that the Whis­tleblower Protec­tion Enhance­ment Act has passed, which is extend­ing much better access for non-intel­li­gence federal employ­ees, that ulti­mately we’ll be able to see the same kinds of oppor­tun­it­ies for those employ­ees. But it’s going to be a long hard struggle.

Q: If some­body out there wanted to learn more about these issues, what would you suggest they read?

Brian: I know that… one book that Dana Priest…

Q: Top Secret Amer­ica.

Brian: Thank you, Top Secret Amer­ica. But you know, if you want to keep up with the weekly news, Steve After­good has a terrific news­let­ter that is free, that people can sign up for through the Feder­a­tion of Amer­ican Scient­ists on Govern­ment Secrecy. That really is sort of I think, the most import­ant place to find out what’s happen­ing.

Q: Okay great, thank you very much.

Brian: Thank you Mike.