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…
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.