On May 28, the House approved an amendment to the defense authorization bill that requires the Office of the Director of National Intelligence (DNI) to cooperate with audits and investigations conducted by the Government Accountability Office (GAO). The measure was passed despite threats by the White House to veto what the Obama administration perceived to be an expansion of GAO authority.

The amendment to the National Defense Authorization Act for Fiscal Year 2011 (H.R. 5136) was introduced by Rep. Anna Eshoo (D-CA) and cosponsored by a group of Democrats including Reps. Howard Berman (D-CA), Jane Schakowsky (D-IL), Rush Holt (D-NJ), John Tierney (D-MA), and Mike Thompson (D-CA). Ultimately, it passed by a bipartisan vote of 218-210.

The GAO is an office of the legislative branch, authorized by statute to investigate all matters relating to the receipt, disbursement, and application of public funds. Only congressional committees may request the GAO to open an investigation. Although the GAO currently has some access to intelligence records, the amendment would statutorily mandate intelligence community cooperation.

The DNI is a component of the executive branch serving as the point office of the 16-agency intelligence community. Generally, legislative branch oversight of this body is limited to the two congressional intelligence committees. Although the GAO does have a relationship with the DNI, its authority to review intelligence activities would be considerably expanded under this amendment.

The executive branch has consistently maintained that GAO has no authority to investigate any intelligence activities. The argument stems from a 1988 opinion by the Justice Department’s Office of Legal Counsel, which stated that the creation of congressional intelligence oversight structure implicitly exempts reviews of intelligence activities from the scope of GAO’s existing audit authority. In years since, this has been expansively applied by administrations to preclude GAO investigation of activities that extend into the realm of traditional intelligence activities.

The amendment states that the DNI "shall ensure that personnel of the [GAO] designated by the Comptroller General are provided with access to all information in the possession of an element of the intelligence community that the Comptroller determines is necessary for such personnel to conduct an analysis, evaluation, or investigation of a program or activity of … the intelligence community." The amendment also expands the authority to request an investigation to any congressional committee. Currently, only the intelligence committees of Congress may make inquiries into the activities of the DNI. The amendment would require that the requesting committee inform the intelligence committees of the request.

The amendment would allow the DNI to redact portions of GAO investigations related to intelligence sources or methods but requires DNI to notify Congress that it has done so. Further, it instructs GAO and DNI to enter into procedural discussions prior to any investigation. DNI is allowed to suggest modifications to investigative procedures within five days of the initial discussion. GAO employees handling the investigation would be subject to the same statutory penalties for unauthorized disclosure as employees of the intelligence community.

Congressional supporters of the amendment made strong statements that the amendment is necessary for them to exercise their constitutional powers as elected officials. After the bill passed in the House, Tierney stated, "Oversight is an essential responsibility of the legislature and the Government Accountability Office, as Congress' investigative agent, is essential to that role. The Intelligence community should not be insulated from oversight. The amendment was crafted carefully to protect sources and methods and I am glad that the red herring of fear of disclosure was not 'bought' by the majority voting."

The amendment may find similar support in the Senate. In 2008, Sen. Daniel Akaka (D-HI) stated that Congress must "redouble its efforts – that is what we are trying to do – to ensure that U.S. intelligence activities are conducted efficiently, effectively, and with due respect for the civil rights and civil liberties of Americans."

Previously, the Obama administration threatened to veto the 2010 Intelligence Authorization Act due to a similar amendment expanding GAO’s authority to review intelligence activities. On March 15, Office of Management and Budget (OMB) Director Peter Orszag wrote to the senior members of the intelligence committees, stating that the new requirement would "undermine the president’s authority and responsibility to protect sensitive national security information." The White House argued that expanding GAO authority would adversely affect oversight relationships between intelligence committees and the DNI.

However, GAO pointed out that the administration’s veto threat was based on an erroneous interpretation of law. In a March 18 letter to senior committee members, the acting GAO Comptroller General, Gene Dodaro, wrote that Orszag made "several misstatements of law and fact." In particular, Dodaro argued that such an amendment would only reinforce GAO’s already existing oversight authority and not substantially alter GAO’s current mandate as stated by Orszag. Dodaro wrote, "GAO acknowledges and does not seek to displace the special relationship between the congressional intelligence committees and the [intelligence community]."

It is unknown how the intelligence community leadership will react to the current amendment. As a congressman, Leon Panetta, current director of the Central Intelligence Agency (CIA), proposed the CIA Accountability Act in 1987. That bill would have increased GAO’s oversight authority of the CIA. However, President Obama’s recent nomination of Gen. James Clapper to succeed outgoing DNI Dennis Blair may result in a resistance to the legislation. Clapper reportedly has tense relationships with some members of Congress. Rep. Pete Hoekstra (R-MI) stated that Clapper is "not forthcoming, open, or transparent."

The amendment does not include any requirement that the public be informed of GAO findings concerning the DNI. While standard GAO practice is to publish the results of its findings free to the public, it often withholds reviews that concern issues of national or homeland security.

Although the bill passed the House, it must be voted on in the Senate. The Senate received the legislation on June 9.