Privacy Watchdog Panel Getting Muzzled by Congress

The already handicapped independent government agency tasked with protecting privacy and civil liberties is at risk of being further crippled by new congressional legislation.

The House Intelligence Committee passed a version of the annual intelligence policy and budget bill that would compel the Privacy and Civil Liberties Oversight Board to report to Congress anytime it disagreed with the intelligence community, even in informal discussions. Plus, it would limit the independent board’s spending to areas Congress specifically authorizes.

In the House version of the 2017 Intelligence Authorization Act, Members of Congress are now demanding the Privacy and Civil Liberties Board come to Congress to report on practically all its discussions with the intelligence community. While Rep. Adam Schiff, D-Ca., celebrated the provision in a press release as a means of “fully authorizing” the members of the board—some observers are concerned it might undermine the board’s influence with the nation’s top spies, an assessment the board appears to agree with.

“There are concerns that the provision….could have the unintended consequence of serving as a disincentive to agencies that might otherwise seek the Board’s advice,” wrote Jen Burita, public affairs and legislative officer for the Privacy and Civil Liberties Board in an email to The Intercept.

The Privacy and Civil Liberties Oversight Board, originally formed by Congress in 2004 based on recommendations made by the 9/11 Commission Report, has two functions: to provide advice to the president and the intelligence community on matters of privacy and civil liberties related to fighting terrorism, and to exercise oversight over the national security apparatus by conducting investigations and making recommendations to Congress.

Following disclosures made by former NSA contractor Edward Snowden, the board has recommended ending the NSA’s bulk phone records collection program—a suggestion Congress implemented when it passed the USA Freedom Act in the summer of 2015. The board also published a lengthy evaluation of the NSA’s overseas surveillance, and is working on several additional reports.

However, Congress has a history of attempting to restrict the board’s already limited powers, and the executive branch has repeatedly failed to prioritize its work—taking several years to nominate members. For several years between 2004 and the present, the board ceased operations, before being revived to investigate the NSA’s surveillance. There are currently several vacancies, including the full-time director’s spot. The board has no actual enforcement powers, or ability to publicly challenge the intelligence community’s use of secrecy to cover up abuse.

While the board does regularly report to Congress on its work and its recommendations, a hefty chunk of its day-to-day duties involves meeting with members of the sixteen different intelligence agencies and having informal policy discussions.

David Medine, the board’s most recent director who resigned this summer to consult for a nonprofit organization, agreed that limiting that informal advice-based role would make the board less effective. “My view is that one of PCLOB’s most important function is to give advice to the intelligence community at the early stages,” he said during a phone interview, comparing the relationship to attorneys and their clients. “If everyone knew something was going to be reported to Congress, that may limit when the intelligence community comes to the board and may limit what they say.”

For Jake Laperruque, fellow on privacy, surveillance, and security for the Constitution Project, a nonprofit bipartisan think-tank, the problem lies less in how much information the board is required to hand over to Congress, and more in how little power the members actually have to elicit that information from the intelligence community.

“If you want more answers from the Privacy and Civil Liberties Oversight Board, give them the capabilities to give you answers,” he said during a phone interview. “We’ve for years had issues with an inadequate budget, inadequate staff…they need better authorities like subpoena power, to bring forward people that they can talk to.”

Without formal powers to collect information—the board might be forced to rely on good will and trust to have the access it needs to do its job.

These concerns could become moot, however, if  President-elect Trump fails to appoint a new director, or to fill the other vacancies. When asked about what a President Trump means for the intelligence overseers, Medine said, “your guess is as good as mine.”

“It took President Obama several years to appoint a full slate,” he noted. “Now there are a number of vacancies to fill…it will be important for them to fill out the board.”

The Trump transition team did not respond to a request for comment.

Top Photo: David Medine, former Chairman of the Privacy and Civil Liberties Oversight Board, speaking with Peter Swire of the Review Group on Intelligence and Communications Technology and Deputy Attorney General James Cole on Capitol Hill.