Defense Department Broadens Congressional Oversight of Secret Programs

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As House Speaker Nancy Pelosi tussles with the White House over expanded intelligence oversight, the Department of Defense quietly and subtly offered Congress an olive branch last week, setting out a formal procedure for the investigative arm of Congress, the Government Accountability Office, to be granted access to special access programs, or SAPs. The change of policy, contained in a directive issued July 1, was first noticed by the Project on Government Secrecy at the Federation of American Scientists.

SAPs exist to provide physical protection for information, operations, capabilities and programs that exceed the level of protection given to information that is classified at the appropriate level.

For example, a memorandum written by Secretary of Defense Robert Gates to the White House last year about Afghanistan policy was classified Top Secret and was transmitted to the National Security Council via an encrypted e-mail system. But it wasn't as well protected as a SAP would  have been. (It leaked.) Even information that is derived from sensitive intelligence collection techniques, known as Sensitive Compartmented Information, or SCI, are often "less" protected than SAPs, which individually require personnel to sign waivers acknowledging that they're "read in" to the particular program.

If this is confusing, it's because it's meant to be confusing and intimidating to younger people who have access to all-source intelligence.

Pelosi wants the Government Accountability Office to oversee special access programs across the intelligence community, including those established by the Office of the Director of National Intelligence and the Central Intelligence Agency. The White House has vehemently resisted GAO oversight on the grounds that it interferes with the prerogative of the executive branch to protect national security information.

According to the Pentagon instruction, GAO personnel "shall be granted SAP access if" the director of the DoD oversight committee on SAPs agrees, after receiving a request from the chair and ranking member of either the defense or intelligence committees, and if the GAO employee who would review the SAP has the appropriate security clearance level.

In practice, as Secrecy News notes, GAO personnel who work with Congress on these programs have the clearance level, and regularly undergo a counterintelligence polygraph to keep their clearances current. Previously, the DoD had no formal mechanism for complying with, or refusing, congressional requests to have the GAO investigate its secret programs.

There are three kinds of SAPS -- open SAPs, which are acknowledged and reported to Congress in an unclassified manner; black or "closed" SAPs, which are reported to Congress in a classified annex to the Defense Department budget; "waived" SAPs, which are orally briefed to the chairs and ranking members of the intelligence committees, their staff directors, and the chairs and ranking members of the appropriations subcommittee for defense.

Most SAPs involve technology projects. At the Department of Defense there are relatively few SAPs involving sensitive human intelligence collection or exploitation methods.  Examples of ongoing non-technology SAPs include interrogation protocols for high-level battlefield detainees in Afghanistan managed by the Defense Counterintelligence and HUMINT Center of the DIA, and every single capability of all of special missions units of the Joint Special Operations Command. One entire government agency, the National Underwater Reconaissance Office, is protected by a SAP.

SAPs are managed by security officers in charge of "Special Technical Operations."

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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