Oversight

Posted on Jul.20, 2017 in classification, Declassification, Oversight by

Number of New Secrets in 2016 At New Low

Last year executive branch agencies created the fewest new national security secrets ever reported, according to an annual report published today by the Information Security Oversight Office (ISOO).

The number of new secrets — or “original classification decisions” — was 39,240 in 2016, an all-time low. The previous low of 46,800 was set in 2014. By comparison, more than 230,000 new secrets a year were being generated a decade ago. Since such record-keeping began in 1980, the total number never dropped below 100,000 until 2012. See 2016 Annual Report to the President, Information Security Oversight Office, July 2017.

While interesting and welcome from an open government viewpoint, the reported reduction in new secrets cannot bear too much interpretive weight. The figures cited by ISOO represent a compilation of dozens of estimates provided by individual agencies, based on sampling methods that are inconsistent and not always reliable.

Moreover, this statistical approach to secrecy oversight implies that all classification decisions are of equal significance. In actuality, some secrets may be of profound importance — politically, morally, historically, or otherwise — while many other secrets (such as administrative or technical details) will have little or no public policy interest. A simple numerical count of the number of classification decisions does not capture their relative meaning or value.

Still, assuming that the uncertainties and the ambiguities in the data have been more or less constant over time, the reduction in new secrets to a record low level is likely to reflect a real reduction in the scope of national security secrecy in the Obama years.

Classification Costs at a Record High

Meanwhile, however, the annual costs incurred by the classification system reached record high levels in 2016, the ISOO report said.

“The total security classification cost estimate within Government for FY 2016 is $16.89 billion,” ISOO reported, compared to $16.17 billion the year before. Classification-related costs within industry were an additional $1.27 billion.

Classification Challenges

Because decisions to classify information often involve subjective judgments about the requirements of national security and the potential of particular information to cause damage, such decisions are sometimes disputed even within the government itself. The classification system allows for classification challenges to be filed by authorized holders of classified information who believe that the information is improperly classified.

Last year, there were 954 such classification challenges, the ISOO report said, about the same number as the year before. Classification of the information was overturned in only about 17% of those challenges, however, compared to over 40% that were overturned the year before.

The classification challenge procedure is a potentially important internal oversight mechanism that is not yet fully mature or widely utilized. For some reason, the majority of classification challenges (496) last year originated at US Pacific Command, while only a single one emerged from the Department of Justice. In fact, ISOO found that about a quarter of all agencies do not even have a classification challenge program, though they are supposed to.

If such challenges could be promoted and accepted as a routine element of classification practice, they could serve to invigorate classification oversight and to provide an useful internal self-check.

The ISOO annual report also presented new data on declassification activity, the Interagency Security Classification Appeals Panel, agency self-inspections, controlled unclassified information (CUI), and other aspects of national security information policy.

ISOO director Mark A. Bradley, whose tenure as director began this year, told the President that in the next reporting cycle, “ISOO will focus on improving our methodology in data collection and will begin planning and developing new measures for future reporting that more accurately reflect the activities of agencies managing classified and sensitive information.”

Posted on Jul.20, 2017 in Congress, Oversight by

OLC Nominee: Every Member of Congress Can Do Oversight

The nominee to lead the Justice Department Office of Legal Counsel acknowledged that all members of Congress have the authority to conduct oversight of the executive branch, and that agencies have a responsibility to accommodate requests by members for information needed to perform their oversight function.

That might seem like a statement of the obvious. But the Office of Legal Counsel issued a controversial opinion earlier this year that took a much more limited view of congressional oversight power:

“The constitutional authority to conduct oversight — that is, the authority to make official inquiries into and to conduct investigations of executive branch programs and activities — may be exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen),” the OLC opinion said. “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”  See Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch, Office of Legal Counsel, May 1, 2017.

Objecting to this narrow OLC conception of oversight, Sen. Chuck Grassley placed a hold on the nomination of Steven A. Engel to become the new Assistant Attorney General in charge of the OLC until Mr. Engel provided an acceptable response to Grassley’s concerns on the matter.

Yesterday, Senator Grassley withdrew his hold after Mr. Engel admitted, in written responses to questions from Grassley entered into the Congressional Record, that the OLC opinion was defective.

“Mr. Engel’s responses, both in writing and in person, indicate that he agrees each Member, whether or not a chairman of a committee, is a constitutional officer entitled to the respect and best efforts of the executive branch to respond to his or her requests for information to the extent permitted by law,” Sen. Grassley said.

“I am satisfied that Mr. Engel understands the obligation of all Members of Congress to seek executive branch information to carry out their constitutional responsibilities and the obligation of the executive branch to respect that function and seek comity between the branches. Therefore, I agree a vote should be scheduled on his nomination, and I wish him the very best in his new role,” he said.

See Removal of Nomination Objection, Congressional Record, July 19, 2017, pp. S4077-4079.

Posted on Jun.19, 2017 in classification, Nuclear Weapons, Oversight by

USAF Upgrades Secrecy of Nuclear Weapons Inspections

The U.S. Air Force has upgraded the classification of information pertaining to nuclear weapons inspections performed by the Inspector General, reducing or eliminating public references to the outcome of such inspections.

Until recently, the IG weapons inspections could be described in unclassified reports. Now they will be classified at least at the Confidential level.

An Air Force nuclear surety inspection (NSI) “assesses a unit’s ability to accomplish its assigned nuclear weapons mission and produce reliable nuclear weapons in a safe and secure environment in compliance with applicable directives. Additionally, an NSI inspects a unit’s capability to safely and reliably receive, store, secure, assemble, transport, maintain, load, mate, lock/unlock, test, render safe and employ nuclear weapons.”

The inspections typically result in a “grade” indicating the level of compliance. Whether pass or fail, those grades, too, will now be classified.

The changes were made following the latest revision of Chairman of the Joint Chiefs Instruction (CJCSI) 3263.05C, Nuclear Weapons Technical Inspections, issued on March 10, 2017. Though unclassified, the Instruction is “Limited” in distribution and is not publicly available.

Even those nuclear weapons inspections that produce a finding of full compliance cannot be disclosed, and from now on they also cannot be acknowledged in military decorations or unit awards.

“These changes are control measures put in place to prevent revealing potential vulnerabilities to adversary forces,” wrote Staff Sgt. Alexx Pons of Air Force Public Affairs. See “Nuclear inspection grade restricted in evaluation, decoration and award comments,” June 14, 2017.

The results of nuclear weapons inspections have been published for decades, noted Hans Kristensen of the Federation of American Scientists, without any reported adverse effect on national security. So an alternate explanation for the new classification policy seems wanted. “The change sure looks handy for preventing the public from knowing embarrassing information about when Air Force units fail nuclear inspections,” he said.

Posted on May.08, 2017 in classification, Congress, Oversight by

Trump Objects to Legislated Limits on Secrecy

In the new Consolidated Appropriations Act of 2017 (section 8009), Congress mandated that no new, highly classified special access programs may be created without 30 day advance notice to the congressional defense committees.

But in signing the bill into law last Friday, President Trump said he would not be bound by that restriction.

“Although I expect to be able to provide the advance notice contemplated by section 8009 in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief,” he wrote in a May 5 signing statement.

More generally, Trump suggested that his power to classify national security information is altogether independent of Congress. “The President’s authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority,” he wrote.

This is a paraphrase of language in the 1988 US Supreme Court opinion in Department of the Navy v. Egan (The President’s “authority to classify and control access to information bearing on national security… flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”)

But left unsaid in President Trump’s signing statement was that the Supreme Court has also held that Congress could modify existing classification procedures or create its own secrecy system.

Thus, in EPA v. Mink (1973), the Supreme Court stated: “Congress could certainly have provided that the Executive Branch adopt new [classification] procedures, or it could have established its own procedures — subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.”

And, as noted by Jennifer Elsea, Congress has in fact legislated a classification regime for nuclear weapons-related information in the Atomic Energy Act.

So the newly legislated notification requirements concerning special access programs appear to be well within the constitutional authority and power of Congress.

The Intelligence Authorization Act for FY 2017 was incorporated into the Consolidated Appropriations Act as “Division N” and enacted into law.

President Trump’s reservations about various provisions in the new appropriations act were presented in the first signing statement issued by the current Administration (h/t Charlie Savage).

Posted on Jan.06, 2017 in Congress, Military Doctrine, Oversight by

Civilian Control of the Military, and More from CRS

The nomination of Gen. James Mattis to be Secretary of Defense will require a legislative waiver of the prohibition against appointing persons who have been on active duty in the military within the past seven years to the position of Secretary.

A new report from the Congressional Research Service takes a look at the underlying issue of civilian control of the military, and related concerns.

“Historically, the restriction relating to the prior military service of the Secretary of Defense appears to be a product of congressional concern about preserving the principle of civilian control of the military, a fundamental tenet underpinning the design and operation of the American republic since its inception in 1776, if not before,” the report says.

The report reviews the origins and background of this principle and then ventures an analysis of its application today.

“The public discussion surrounding the proposed nomination of General Mattis seems to be less about preserving the principle of civilian control of the military (although that is certainly being debated), and more about civilian-military relations more generally.”

“Very few observers, if any, appear concerned that General Mattis, if appointed to the position of Secretary of Defense, will compromise the longstanding American tradition of ensuring that the military remains subordinate to the authority of civilian leaders. Instead, the possible appointment of General Mattis has served as a catalyst for a more wide-ranging discussion [of] the ways in which the U.S. military, civil society, and civilian leaders relate to each other,” CRS said. See Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress, January 5, 2017.

Other new and updated reports from the Congressional Research Service include the following.

Alien Registration Requirements: Obama Administration Removes Certain Regulations, but Underlying Statutory Authority Remains, CRS Legal Sidebar, January 5, 2017

Latin America and the Caribbean: Key Issues for the 114th Congress, updated January 4, 2017

The Budget Reconciliation Process: Stages of Consideration, updated January 4, 2017

Budget Reconciliation Measures Enacted Into Law: 1980-2010, updated January 4, 2017

Systemically Important or “Too Big to Fail” Financial Institutions, updated January 4, 2017

Temporary Assistance for Needy Families (TANF): Size of the Population Eligible for and Receiving Cash Assistance, January 3, 2017

Congressional Careers: Service Tenure and Patterns of Member Service, 1789-2017, updated January 3, 2017

Inspectors General in and Beyond the Presidential Transition Period, CRS Insight, January 3, 2017

Posted on Nov.28, 2016 in classification, Oversight by

Mark Bradley Named To Be New ISOO Director

In what must be one of the very last national security-related posts to be filled in the Obama Administration, national security lawyer and former CIA officer Mark A. Bradley was named as the next director of the Information Security Oversight Office (ISOO), which is responsible for oversight of the national security secrecy system government-wide.

He was selected by Archivist of the United States David S. Ferriero (ISOO is housed at the National Archives) and his appointment was approved last week by President Obama (the ISOO director reports to the President).

Mr. Bradley is an intriguing choice for ISOO director, since he is one of a very small group of individuals who have engaged with government secrecy policy both as an outsider-critic and as an insider-defender.

“We have a broken system that is manufacturing way too many secrets,” he told the Wall Street Journal late in the Clinton Administration (“Case of Lost-and-Found Disk Drives Demonstrates Weakness of U.S. Systems for Protecting Secrets” by Neil King, July 5, 2000).

More recently, however, he has been the voice of the secrecy system itself, defending the government from Freedom of Information Act lawsuits brought by the Electronic Frontier Foundation, the ACLU, the New York Times, EPIC, Judicial Watch, and others. He did not simply represent the government’s position. Rather, as a Top Secret original classification authority at the Department of Justice National Security Division, he actually made many of the decisions to retain the classification of information that was sought by FOIA requesters in those cases.

If it was a mistake to classify the collection of Americans’ telephone metadata records by the National Security Agency (under the “215” program), then Mr. Bradley bears a slice of responsibility for that decision.

In 2013, about two months before the metadata collection program was publicly disclosed (in The Guardian) by Edward Snowden, Mr. Bradley told a court that a request by the Electronic Frontier Foundation for information about the program must be denied.

“The withheld material contains specific descriptions of the manner and means by which the United States Government acquires tangible things for certain authorized investigations pursuant to Section 215,” Mr. Bradley wrote in an April 2013 declaration. “Disclosure of this information would provide our adversaries and foreign intelligence targets with insight into the United States Government’s foreign intelligence collection capabilities, which in turn could be used to develop the means to degrade and evade those collection capabilities.”

In retrospect, this proved to be a narrow and incomplete assessment of the issue. While the 215 program information was indeed properly classified under the terms of the executive order, it should have been released anyway. That, at least, was the conclusion that was ultimately reached — long after the question was moot — by Director of National Intelligence James R. Clapper.

“I probably shouldn’t say this, but I will,” DNI Clapper told Eli Lake of the Daily Beast in 2014. “Had we been transparent about this from the outset… we wouldn’t have had the problem we had.”

Importantly for his ISOO role, Mr. Bradley is not “just” a former intelligence officer and national security lawyer. He is also an historian who has done archival research and worked with declassified records to produce a well-regarded volume called A Very Principled Boy: The Life of Duncan Lee, Red Spy and Cold Warrior (Basic Books, 2014). So he will bring multiple relevant dimensions of expertise to his new responsibilities at ISOO.

Mr. Bradley’s tenure as ISOO director will begin on December 25. The previous ISOO director, John P. Fitzpatrick, left last January to join the National Security Council staff. William A. Cira has been serving as acting director in the interim.

Among his many other responsibilities, the ISOO director serves as the Executive Secretary of the Public Interest Declassification Board (PIDB), an official advisory body. The PIDB has scheduled a public meeting at the National Archives on December 8 “to discuss recommendations for improved transparency and open government for the new Presidential Administration.”

Meanwhile, the House Committee on Oversight and Government Reform said that it will hold a hearing on December 7 to “examine overclassification and other failures of the classification system.”

Posted on Oct.11, 2016 in classification, Oversight by

Amount of Classification is Highly Uncertain

One of the more encouraging changes in classification policy over the past decade has been the sharp reduction in the number of decisions to classify information reported each year by executive branch agencies.

In 2005 there were a total of 258,633 original classification actions, or new secrets, reported; in 2015, there were said to be 53,425 such actions. (See Number of New Secrets in 2015 Near Historic Low, Secrecy News, July 29, 2016).

Despite the misleading precision with which they are reported, these numbers — which are derived from agency reports to the Information Security Oversight Office and published in ISOO annual reports — were understood to be estimates, not precise tabulations.

Now, however, a new report from the State Department Inspector General suggests that State’s reporting of its classification activity to ISOO may not only be imprecise, but actually inaccurate and incorrect.

The Inspector General “found shortcomings with the count of classification decisions” reported to ISOO. The estimates that were generated were not validated, and they did not reflect the full scope of State Department classification activity.

So, “For example, classified documents created within the Office of the Secretary were not included” in the survey, the IG said. See Compliance Follow-up Review of the Department of State’s Implementation of Executive Order 13526, Classified National Security Information, Office of Inspector General, Department of State, September 2016.

The bottom line, the IG said, is that reported classification totals “will not accurately represent all of the Department’s classification decisions because not all decisions are being identified or sampled as part of the Department’s self-inspection program.”

William Cira, the acting director of the Information Security Oversight Office, said he was not surprised by the Inspector General findings, and not especially troubled.

He recalled that ISOO itself stated in its 2009 report that “the data reported has not truly reflected the changing ways agencies have generated and used classified information in the electronic environment.”

“It has been recognized, even long before we asked the agencies to include the electronic environment, that an actual count is not feasible,” Mr. Cira added. “The sampling and extrapolation technique described in that report has been in widespread use for a long time.”

“It is actually one of the suggested methods that we impart to the agencies when we send out our data collection request each year. Since FY 2009, ISOO has asked agencies to do their best to estimate the volume of all classified products in the electronic environment.”

“We have always acknowledged that this would not be easy.  We do ask them [agencies] to estimate, we do suggest that they sample and extrapolate, and we acknowledge that in almost all cases they will not have the resources to conduct a scientific survey as that is defined by professional statisticians.”

“This method may seem crude but we recognize that almost none of agency data collectors have trained statisticians to call upon, and there is no expectation that they hire one.” Still, “If the Dept. of State OIG believes that the Office of the Secretary should be included that is a welcome suggestion.”

“The one thing for certain is that this method has been consistently applied across many agencies for a very long time,” Mr. Cira said.

In other words, if the collection method is crude, at least it is consistent in its crudeness, and so perhaps some rough trend information may still be discerned within the noise.

But without real quantitative and qualitative clarity, effective management of agency classification activity will be beyond reach.

Posted on Oct.05, 2016 in CIA, Inspector general, Intelligence, Oversight by

CIA Poke at DoD Intelligence Was Not “Substantiated”

In a dispute that pitted member agencies of the U.S. intelligence community against each other, the Central Intelligence Agency claimed that “a questionable intelligence activity” had been carried out in 2014 by agents of the Department of Defense.

But an investigation of the matter by the DoD Inspector General that was partially declassified last week failed to corroborate the CIA claim.

At issue was whether or not an unnamed individual had “conducted unauthorized intelligence activities in Europe on behalf of DoD,” as CIA had alleged.

“We were unable to substantiate the CIA allegation and could not find any evidence that [deleted] traveled to Europe or paid any sources on behalf of the DoD,” the Inspector General concluded.

“We could not find evidence of DoD intelligence tasking,” the IG investigative summary said. “In addition, we verified that [deleted] did not travel to Europe in 2014.”

The IG summary report, which had been classified Secret/Noforn, was partially declassified and released under the Freedom of Information Act last Friday.  See Investigative Results of a Questionable Intelligence Activity (redacted), DoD Inspector General report DODIG-2015-171, September 8, 2015.

Meanwhile, for his part, the alleged DoD culprit “asserts that the CIA fabricated the allegation that [deleted] had been conducting intelligence operations in Europe in order to ensure that [several words deleted] because [deleted] claimed [deleted] had previously identified and revealed analytical flaws within CIA analysis.”

However, that counter-accusation “was outside the scope of our investigation and has been referred to the Intelligence Community Inspector General for review.”

The exact nature of the alleged questionable intelligence activity and the identity of the individual(s) involved were not declassified.

Nor would CIA elaborate on the public record.

“You can say CIA declined to comment,” said CIA spokesperson Ryan Trapani.  “We defer to DOD on the document.”

Posted on Sep.19, 2016 in Intelligence, Oversight, Snowden by

Sorting Through the Snowden Aftermath

Public discussion of the Edward Snowden case has mostly been a dialog of the deaf, with defenders and critics largely talking past each other at increasing volume. But the disagreements became sharper and more interesting over the past week.

“Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal,” wrote the members of the House Intelligence Committee in a startling September 15 letter to the President, urging him not to pardon Snowden, contrary to the urging of human rights groups.

“The public narrative popularized by Snowden and his allies is rife with falsehoods, exaggerations, and crucial omissions,” the House Intelligence Committee wrote in the executive summary of an otherwise classified report on Snowden’s disclosures.

Remarkably, however, the House Committee report itself included numerous false statements and misrepresentations, according to an analysis by Barton Gellman, who had reported on Snowden’s disclosures for the Washington Post.

“The report is not only one-sided, not only incurious, not only contemptuous of fact. It is trifling,” wrote Gellman, who identified several apparent errors and falsehoods in the House Committee summary.

What is perhaps worse than what’s contained in the House document, though, is what is missing from it: Congressional intelligence overseers missed the opportunity to perform any reflection or self-criticism concerning their own role in the Snowden matter.

The fact that U.S. intelligence surveillance policies had to be modified in response to the public controversy over Snowden’s disclosures was a tacit admission that intelligence oversight behind closed doors had failed to fulfill its role up to that point. But since the Committee has been unwilling to admit any such failure, it remains unable to take the initiative to rectify its procedures.

Last week, a coalition of non-governmental organizations proposed various changes to House rules that they said would help to improve the quality of intelligence oversight and make it more responsive to congressional needs and to the public interest.

Meanwhile, several human rights organizations launched a campaign to urge President Obama to pardon Snowden.

“Thanks to his act of conscience, America’s surveillance programs have been subjected to democratic scrutiny, the NSA’s surveillance powers were reined in for the first time in decades, and technology companies around the world are newly invigorated to protect their customers and strengthen our communications infrastructure,” the petition website said. “Snowden should be hailed as a hero. Instead, he is exiled in Moscow, and faces decades in prison under World War One-era charges that treat him like a spy.”

However, aside from that oblique reference to the Espionage Act of 1917, the petition campaign does not acknowledge any defect in Snowden’s conduct or weigh counterarguments. (A somewhat more nuanced defense of a pardon was presented by Tim Edgar in Lawfare. A substantial rebuttal to the pardon proposal was offered by Jack Goldsmith also in Lawfare.)

But of course what complicates the Snowden matter is that his disclosures exceeded the boundaries of “democratic scrutiny” and went well beyond any identifiable “act of conscience.”

“The fact is, many of Snowden’s documents bore no resemblance to whistleblowing as the phrase is broadly understood,” wrote Fred Kaplan in a review of the new Oliver Stone movie about Snowden in Slate. Rather, he said, they represented “an attempt to blow U.S. intelligence operations.”

Advocacy journalist Glenn Greenwald replied with a debater’s point that Snowden is innocent of any such offense since he (Snowden) did not directly disclose anything at all to the public! Instead, he gave documents to newspapers that reported on his material, and those papers are responsible for any inappropriate disclosures.

“Snowden himself never publicly disclosed a single document, so any programs that were revealed were the ultimate doing of news organizations,” according to Greenwald.

In an oddly mercenary argument, he also wrote that it was hypocritical of the Washington Post editorial board to oppose a pardon for Snowden, considering that the Post had gained “untold millions of clicks” from his disclosures, and therefore somehow owed him a debt of loyalty.

But an effort to shift responsibility away from Snowden on to news reporters and editors proves too much. It implies that Snowden is not a whistleblower at all, since he himself didn’t blow any whistles, his journalistic collaborators did.

It seems more sensible to conclude that Snowden is responsible for his own actions as well as for the directly foreseeable consequences of those actions.

In an interesting response to Jack Goldsmith, Marcy Wheeler wrote that it is possible to comprehend — if not to reconcile — the sharply opposing views of the Snowden case if they are understood as a clash between professed American values (such as openness, privacy, and internet freedom) and American interests and actions (such as global surveillance and projection of military power). The former, “cosmopolitan” view presumes, however, that the favored values transcend, and can be sustained apart from, their national and institutional roots.

Posted on Jun.20, 2016 in Congress, Intelligence, Oversight, privacy by

2017 Intelligence Bill Would Constrain Privacy Board

The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) would be restricted for the second year in a row by the Senate Intelligence Committee version of the FY2017 Intelligence Authorization Act (S.3017). Section 603 of the Act would specifically limit the scope of PCLOB’s attention to the privacy and civil liberties “of United States persons.”

Internal disagreements over the move were highlighted in the Committee report published last week to accompany the text of the bill, which was reported out of Committee on June 5.

“While the PCLOB already focuses primarily on U.S. persons, it is not mandated to do so exclusively,” wrote Senators Martin Heinrich and Mazie K. Hirono in dissenting remarks appended to the report. “Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent. It is conceivable, for example, that under this restriction, the PCLOB could not have reviewed the NSA’s Section 702 surveillance program, which focuses on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process,” they wrote.

“Over the past three years, the Privacy and Civil Liberties Oversight Board has done outstanding and highly professional work,” wrote Sen. Ron Wyden in his own dissent. “It has examined large, complex surveillance programs and evaluated them in detail, and it has produced public reports and recommendations that are quite comprehensive and useful. Indeed, the Board’s reports on major surveillance programs are the most thorough publicly available documents on this topic. My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.”

In support of the provision, the report said that “The Committee believes it is important for the Board to consider the privacy and civil liberties of U.S. Persons first and foremost when conducting its analysis and review of United States counterterrorism efforts.”

But the PCLOB already considers U.S. person privacy “first and foremost.” And the language of the Senate bill does not appear to permit even “secondary” consideration of the privacy of non-U.S. persons. Last year, the FY2016 intelligence authorization bill barred access by the Board to information deemed relevant to covert action.

On June 16, Sen. Patrick Leahy paid tribute to retiring PCLOB chair David Medine on the Senate floor. “[PCLOB] reports and Mr. Medine’s related testimony before the Senate Judiciary Committee have been tremendously beneficial to Congress and the American people in examining government surveillance programs,” he said.