The House Armed Services Committee is asking the Secretary of Defense to identify “specific inefficiencies with regard to the process for the declassification of documents” pertaining to prisoners of war and missing in action personnel, and ways to expedite the release of such documents. The directive was included in the new Committee report on the FY 2016 defense authorization act.

Declassification of POW/MIA records is a niche issue of intense personal interest to some, and of no particular interest to others. But because such niche issues embody systemic problems, they have the potential to drive changes in policy that can have ripple effects throughout the national security classification process, as disputes over release of JFK assassination records have done in the past.

Thus, the Committee asked the Secretary to report on “challenges in current declassification procedures; recommendations to expedite procedures for interagency declassification; recommendations for procedures to declassify redacted portions of previously released documents;…” and so forth.

In a separate provision, the House Committee responded to a Department of Energy Inspector General finding this year that information had sometimes been misclassified and/or improperly disclosed at Los Alamos National Laboratory. The Committee instructed the National Nuclear Security Administration to report on “the measures taken to improve the effectiveness of the classification process and related oversight.”

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After President Obama suggested in a 2013 speech that the CIA drone program could be transferred to the Department of Defense, Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage the move, Politico recalled in a story last month.

Classified legislative language has been generated by Congress and used to shape intelligence policy each year since the congressional intelligence committees prepared the first stand-alone intelligence authorization act in 1977 (for Fiscal Year 1978).

Though unpublished, those classified provisions have the force of law, the Senate Intelligence Committee declared in the FY 1978 intelligence authorization report (S.Rpt. 95-214, May 16, 1977):

“It is the intent of the committee that the classified report, although not available to the public, will nonetheless have the force of a Senate authorization bill; further that the Intelligence Community shall comply fully with the guidelines and limitations contained therein,” the intelligence authorization report said.

What were those guidelines and limitations that the Intelligence Community was obliged to comply with? That remains a secret almost four decades later, because that first classified committee report has never been made public. Neither has a single one of the subsequent classified annexes to the annual committee authorization bills. Though they may have the legal force of other authorizing legislation, their classified contents remain almost entirely inaccessible to the public.

“The idea of secret laws is repugnant,” a federal appeals court memorably said (Torres v. INS, 7th circuit, 1998). The court’s concern at the time was that “People cannot comply with laws the existence of which is concealed.” But compliance aside, secret laws are also problematic because people cannot challenge them or seek to amend them.

“Secret law” can take a variety of forms. The term is often invoked with respect to unreleased opinions of the Office of Legal Counsel that interpret the law for the executive branch in undisclosed ways. It can also apply to secret presidential directives that define national policies and to some other categories of government information.

The classified annexes to the annual intelligence bills appear to constitute secret law in a strict sense. They legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.

As U.S. foreign intelligence agency activities have expanded into non-consensual domestic collection practices and unconventional “enhanced” techniques, the secret laws that govern them become more than an abstract concern.

Only sporadically do particular provisions of classified annexes to the intelligence bills ever come to public knowledge, whether through leaks or official disclosures.

The account of Sen. Feinstein’s secret intervention to maintain the CIA drone program was first reported by Greg Miller in the Washington Post (“Lawmakers seek to stymie plan to shift control of drone campaign from CIA to Pentagon,” January 15, 2014).

On other occasions, the Senate Intelligence Committee has voluntarily disclosed some of its own classified actions, if only in broad outline. Thus, the Committee revealed in a retrospective report this year:

*    “In the Intelligence Authorization Act for Fiscal Year 2014 and associated classified annex, the Committee recommended additional resources to help assure the IC meets [its] counterintelligence and security goals as soon as possible.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the DNI to provide an implementation plan for the Human Capital Vision.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 directed the development of a specific GAO review to bolster intelligence oversight and reduce unnecessary fragmentation, overlap, and duplication.”

*    “The classified annex of the Intelligence Authorization Act for Fiscal Year 2014 required the DNI create a governance and oversight model to provide the DNI and the Congress with the insight required to ensure IC ITE [the IC Information Technology Enterprise] meets milestones for performance, cost, and schedule. The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities.”

Secret intelligence legislation is a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.

“The declassification procedures for classified records created by committees of Congress, particularly classified reports and closed hearing transcripts, are irregular and limited,” said the Public Interest Declassification Board in a 2007 report on Improving Declassification.

“The classified records created by the Congress often provide unique and significant insights into national security policy, decision making, and the budget and oversight process at a given point in time,” the PIDB report said. “Yet, because the records of the committees are classified and never subjected to declassification review, the public and historians are largely unaware of their existence.”

The PIDB recommended that “formal procedures should be established for the declassification review of classified committee reports and hearing transcripts.” But with few exceptions, that recommendation has not been acted upon, and the number of declassified congressional reports remains disappointingly small.

One example of a declassified committee report is the release last year of a redacted summary of the SSCI report on CIA detention and interrogation. Another is the redacted 2002 final report of the congressional joint inquiry into the 9/11 terrorist attacks.

Over the years, the Senate Foreign Relations Committee has published declassified transcripts of the Committee’s executive sessions (closed hearings) in a series of twenty volumes covering 1947 through 1968.  But after the latest volumes were published in 2007 and 2010 (covering hearings in 1967 and 1968), no further releases have been forthcoming from the Committee.

Update: For a response from ODNI, see Annexes to Intelligence Bills are not “Secret Law.”

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There is a new sheriff in town. Is that the message that Senator Richard Burr, the new chair of the Senate Select Committee on Intelligence, is trying to send?

Senator Burr reportedly wrote to President Obama last week to ask that all copies of the classified 6,700 page Committee report on CIA interrogation practices be returned immediately to the Committee. While the redacted summary of the report has been publicly released and is even something of a bestseller for the Government Printing Office as well as a commercial publisher, the full report has not been made public. And Senator Burr seems determined to keep it that way.

Senator Burr’s letter was reported in C.I.A. Report Found Value of Brutal Interrogation Was Inflated by Mark Mazzetti, New York Times, January 20. (More: Washington Post, Huffington Post.)

Senator Dianne Feinstein, who chaired the Committee while the report was produced, scorned the request for its return.

“I strongly disagree that the administration should relinquish copies of the full committee study, which contains far more detailed records than the public executive summary. Doing so would limit the ability to learn lessons from this sad chapter in America’s history and omit from the record two years of work, including changes made to the committee’s 2012 report following extensive discussion with the CIA,” she said in a statement.

Among other things, the proposed return of the full report may be intended to prevent its potential future accessibility through the Freedom of Information Act, which does not apply to records in congressional custody.

But if so, this seems short-sighted and probably futile, given that all of the evidentiary material on which the report is based originated in the executive branch anyway. Moreover, the Committee report has spawned an entire literature of agency evaluations and responses (such as the so-called Panetta Review). That literature belongs to the agencies, and sooner or later it should be subject to public disclosure regardless of the fate of the SSCI report.

Update 1/22/15: Jason Leopold of VICE News has a thorough account of this episode to date here, including a copy of the letter from Senator Burr and a letter from Senator Feinstein in response.

The release of the executive summary of the Senate Intelligence Committee report on CIA’s post-9/11 interrogation program is, among other things, an epic act of record preservation.

Numerous CIA records that might not have been disclosed for decades, or ever, were rescued from oblivion by the Senate report and are now indelibly cited and quoted, even if many of them are not yet released in full.

That’s not a small thing, since the history of the CIA interrogation program was not a story that the Agency was motivated or equipped to tell.

“The CIA informed the Committee that due to CIA record retention policies, the CIA could not produce all CIA email communications requested by the Committee,” the report noted, explaining that the desired information was sometimes recovered from a reply message when the original email was missing.

Agency emails turned out to be a critical source of information, a fact that illuminates the Committee’s sharp response recently to the (now suspended) CIA proposal to the National Archives (NARA) to destroy most Agency emails of non-senior officials.

Thus, the gruesome record of the waterboarding of al Qaeda operative Abu Zubaydah “was referenced in emails, but was not documented or otherwise noted in CIA cables.” (This is at odds with NARA’s initial view that “It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files.”)

The Committee report is also a remarkable demonstration of the congressional oversight function that is all the more impressive because it was performed in adverse, unfavorable conditions.

It is striking to see how the CIA sometimes treated the Senate Intelligence Committee, its leadership and its staff with the same disdain and evasiveness that is often perceived by FOIA requesters and other members of the public.

Committee questions were ignored, inaccurate information was provided, and the oversight process was gamed.

“Internal CIA emails include discussion of how the CIA could ‘get… off the hook on the cheap’ regarding [then-Committee] Chairman [Bob] Graham’s requests for additional information…. In the end, CIA officials simply did not respond to Graham’s requests prior to his departure from the Committee in January 2003,” the report said.

“I am deeply disturbed by the implications of the study for the committee’s ability to discharge its oversight responsibility,” wrote Sen. Angus King (I-Maine) in his additional remarks. “Because it appears from the study that the committee was continuously misled as to virtually all aspects of this program, it naturally raises the extremely troubling question as to whether we can trust the representations of the agency in connection with difficult or sensitive issues in the future.”

But minority members of the Committee disputed this characterization: “In reality, the overall pattern of engagement with the Congress shows that the CIA attempted to keep the Congress informed of its activities,” they wrote in their extensive dissenting views.

Perhaps the most important achievement of the Committee report was to document and memorialize the fact that agents of the US Government practiced torture. Not “harsh measures” or “enhanced techniques,” but torture.

Senator Susan Collins (R-Maine), who criticized what she said were methodological flaws in the Committee report, said in her additional views that “Despite these significant flaws, the report’s findings lead me to conclude that some detainees were subject to techniques that constituted torture. This inhumane and brutal treatment never should have occurred.”

By the same token, the most important omission from the report is the absence of any discussion of remedies.

Now that it is firmly established that “we tortured some folks,” as President Obama awkwardly put it, the question is what to do about it. Confession without atonement is incomplete.

Prosecution seems problematic for a number of reasons, including the difficulty of localizing responsibility, when it is entire institutions and not just particular officials that failed.

A different approach to the problem would start by considering the individuals who suffered abuse at the hands of the U.S. government, including a number of persons who were detained in error. Congress could now ask how some of them (i.e. those who are still alive) could be compensated in some measure for what was wrongly done to them.

Several previous efforts to seek remedies for torture were deflected by use of the state secrets privilege. In light of the detailed findings of the Senate Intelligence Committee report, that sort of evasion should be harder to sustain. Congress could accelerate a resolution of the problem with a focused investigation of what potential remedies are now feasible and appropriate.

For the next two years, Congress wants to receive quarterly reports from the Department of Defense on how the Pentagon is responding to leaks of classified information. The reporting requirement was included in the pending National Defense Authorization Act for FY 2015 (Sec. 1052).

“Compromises of classified information cause indiscriminate and long-lasting damage to United States national security and often have a direct impact on the safety of warfighters,” the Act states.

“In 2010, hundreds of thousands of classified documents were illegally copied and disclosed across the Internet,” it says, presumably referring to the WikiLeaks disclosures of that year.

“In 2013, nearly 1,700,000 files were downloaded from United States Government information systems, threatening the national security of the United States and placing the lives of United States personnel at extreme risk,” the Act states, in a presumed reference to the Snowden disclosures. “The majority of the information compromised relates to the capabilities, operations, tactics, techniques, and procedures of the Armed Forces of the United States, and is the single greatest quantitative compromise in the history of the United States.”

The Secretary of Defense will be required to report on changes in policy and resource allocations that are adopted in response to significant compromises of classified information.

The defense authorization act does not address irregularities in the classification system, such as overclassification or failure to timely declassify information.

It does call for additional reporting on the Department of Defense “insider threat” program (Sec. 1628), and on “the adoption of an interim capability to continuously evaluate the security status of the employees and contractors of the Department who have been determined eligible for and granted access to classified information.”

By definition, this continuous evaluation approach does not focus on suspicious individuals or activities, but rather is designed to monitor all security-cleared personnel.

Rep. James P. Moran this week called on President Obama to pardon John Kiriakou, the former CIA officer who was convicted of disclosing the name of an undercover intelligence officer and who is currently serving a prison sentence in the Federal Correctional Institution in Loretto, Pennsylvania.

“Mr. Speaker, I rise today to ask for a Presidential pardon for John Kiriakou,” said Rep. Moran (D-VA), who is retiring from Congress, in a statement entered in the Congressional Record. “Mr. Kiriakou is an American hero.”

“John Kiriakou is a whistleblower, as well. The first American intelligence officer to officially and on-record reveal that the U.S. was in the torture business as a matter of White House policy under President Bush. In confirming what the American media and policymakers were hearing whispered–that waterboarding and other enhanced interrogation techniques were a matter of standard military and intelligence procedures–he helped begin an intense and overdue debate over whether torture violated international law, tarnished our higher American principles and undermined the critical need for reliable, actionable information,” Rep. Moran said.

“And John Kiriakou is a convicted felon, serving a 21/2 year plea bargained sentence in a Pennsylvania federal prison. The charge against him is violating the Intelligence Identities Protection Act, whereby John answered a question from a U.S. reporter who was duplicitously fronting for lawyers defending Al Qaeda prisoners held at Guantanamo Bay and in the process unintentionally confirmed the classified identity of a CIA colleague. A colleague who, by the way, was being erroneously labeled as an enhanced interrogation techniques torturer.”

“The real issue here is the extremely selective prosecution of John and the ongoing efforts to intimidate him from talking about our intelligence community’s misfires,” he said.

“Whatever John’s misdeeds–and he admits that answering that reporter’s questions was ill-advised and naive–he has more than paid for them. After fifteen years of service to his country, the personal risks and costs of a life in the intelligence world, the legal double-standard applied, and now two years in prison John Kiriakou deserves a Presidential pardon so his record can be cleared, just as this country is trying to heal from a dark chapter in its history,” Rep. Moran said.

Rep. Moran’s statement does not constitute an application for a presidential pardon, and Mr. Kiriakou would not normally be eligible for such a pardon until at least 5 years after his impending release from prison.

The Moran statement does, however, represent a rare congressional expression of sympathy for a convicted leaker, and an unusual gesture of respect for an incarcerated American of any kind.

And in fact, there is some precedent for a pardon, even among the small cohort of convicted leakers of classified information.

In January 2001, President Clinton formally pardoned Samuel Loring Morison, the first person to be convicted of unauthorized disclosure of classified information to the press. A copy of the certificate of clemency is here.

“What is remarkable is not the crime,” wrote Sen. Patrick Moynihan in a 1998 letter to the President about the Morison case, “but that he is the only one convicted of an activity which has become a routine aspect of government life: leaking information to the press in order to bring pressure to bear on a policy question.”

“A presidential pardon is a sign of forgiveness,” wrote Justice Department pardon attorney Roger C. Adams at the time. “It does not erase or expunge the record of conviction and does not indicate innocence.”

A bill introduced in the House of Representatives by Rep. Bennie Thompson (D-MS) would direct the President to reduce the amount of classified information by 10%. It is one of several new congressional initiatives seeking to rectify perceived defects in the national security classification system.

Most prominently, the Senate Intelligence Committee is engaged in an ongoing dispute with the Administration over declassification of the Committee’s report on the CIA’s post-9/11 detention and interrogation program.

Sen. Dianne Feinstein, the Committee chair, said the Administration’s proposed redactions to the executive summary of the report were unacceptably broad.

“I have concluded the redactions eliminate or obscure key facts that support the report’s findings and conclusions,” she said on August 5. “Until these redactions are addressed to the committee’s satisfaction, the report will not be made public.”

With this contentious experience fresh in mind, one might have expected the Senate Intelligence Committee to have acquired special insight into the failings of the existing classification system and to have devised some well-considered remedial measures to address them.

But that does not appear to be the case.

In its new intelligence authorization bill for Fiscal Year 2015 (S. 2741, sec. 311), the Committee weakly requires the Director of National Intelligence to prepare a report “describing proposals to improve the declassification process throughout the intelligence community.”

Under current circumstances, this proposed reporting requirement seems like a failure of imagination and leadership, and probably a waste of everyone’s time. Perhaps it is just a placeholder for something more ambitious that is still to come.

By contrast, the bill introduced by Rep. Thompson in the House and by Sen. Ron Wyden in the Senate is prescriptive and solution-oriented in its treatment of the issue.

Among its several provisions, the new bill (HR 5240) would require the President “to establish a goal for the reduction of classified information by not less than 10 percent within five years through improved declassification and improved original and derivative classification decision-making,” according to a Fact Sheet on the bill, dubbed the CORRECT Act. (It is unclear how the 10 percent reduction in information would be measured, whether in pages or bytes or number of classification decisions or by some other standard.)

The Thompson/Wyden bill would also bolster and expand the Public Interest Declassification Board, assigning it the responsibility to evaluate the continuing validity of all current classification guidance. Though this provision may seem innocuous, it is a clear challenge to the autonomy that is currently enjoyed by executive branch agencies regarding what is to be classified. As such, it represents the kernel of a solution to the problem of overclassification.

The bill would further direct the Privacy and Civil Liberties Oversight Board to establish standards for the emerging insider threat program, and it would decisively break from current practice by authorizing the Merit System Protection Board to review agency denials or revocations of security clearances.

However, the deliberative effort that has gone into preparing the bill is not going to yield any near-term reward. In all likelihood, Rep. Thompson’s CORRECT Act will not even receive a hearing in the remainder of this expiring Congress.

Another modest but potentially useful legislative effort is an amendment to be introduced by Sen. Jeanne Shaheen that would enhance the authority and capacity of the National Declassification Center.

If the Senate Intelligence Committee wants a report on “improving declassification,” as the new intelligence authorization bill requires, then there is already a report with that very title that was prepared by the Public Interest Declassification Board in December 2007.

Several of the report’s recommendations have still not been acted on. Among them is a proposal that “formal procedures should be established for the declassification review of classified [congressional] committee reports and hearing transcripts.”

Because such records are produced and held by congressional committees, such as the Senate Intelligence Committee, they are not eligible for declassification unless and until the originating committee takes the initiative to have them reviewed and declassified. Yet this is rarely done, despite the importance of these materials.

“Frequently, closed sessions of congressional committees are the only occasion when executive branch policy in the national security area is explained, challenged (by members), and defended by administration representatives. The exchanges at these hearings, as well as the views of Congress (elaborated in classified committee reports), often affect the policy choices of the executive branch. Yet, because the records of the committees involved are classified and never subjected to declassification review, the public and historians are largely unaware of their existence,” the PIDB report said.

“Despite their historical significance, classified records created by the Congress are reviewed for declassification only on a hit-or-miss and relatively limited basis. As a result, the public is denied a valuable source of historically significant information,” the report said.

So, for example, not a single classified annex to the annual intelligence authorization bills produced by the congressional intelligence committees has ever been declassified.

In 2000, both houses of Congress passed legislation that would have made any leak of classified information a felony.

The provision, contained in the FY2001 intelligence authorization act, was designed “to ensure the prosecution of all unauthorized disclosures of classified information.” said Sen. Richard Shelby, the primary sponsor of the provision, at the time.

While some unauthorized disclosures of classified information were already prohibited by statute (including the Espionage Act), others have not been specifically outlawed, or else their legal status is uncertain, requiring strenuous efforts by prosecutors to fit a prohibition to the presumed offense. The Shelby provision would have removed all ambiguities and would have simply criminalized all leaks of classified information.

But to the astonishment of nearly everyone, and to the relief of many, President Clinton vetoed the 2001 intelligence authorization bill because of the anti-leak measure.

“Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” he wrote in his November 4, 2000 veto message.

But that unexpected outcome almost didn’t come to pass.

Instead of a veto, White House lawyers had prepared draft signing statements for President Clinton in which he would have approved the bill, while expressing some reservations about its potential impact.

The draft signing statements were released by the Clinton Presidential Library last week. The newly disclosed presidential documents were first noted by Josh Gerstein in Politico on July 18.

“I strongly believe… that this new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals,” according to the draft signing statement for President Clinton that was ultimately set aside in favor of a veto of the bill.

The worst effects of the anti-leak measure could be avoided by the limited, judicious use of prosecutorial authority, White House lawyers initially suggested.

“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision,” the draft signing statement said.

Prosecutorial discretion often seems to be in short supply, however, and in all likelihood it would not have been an effective bulwark against abuse of the vetoed anti-leak provision, had it passed into law.

An apparent excess of zeal in the prosecution of classified document (mis-)handling was highlighted just last week in the case of Navy contract linguist James F. Hitselberger, who had been charged with multiple felonies in connection with the unlawful retention of national defense information. Earlier this year, Mr. Hitselberger pleaded guilty to a single misdemeanor. Last Thursday, he was sentenced to time already served (in pre-trial custody) and a fine of $250.00.

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The National Security Agency would be required to prepare an unclassified report on “all NSA bulk collection activities,” the Senate Appropriations Committee directed in its report on the Fiscal Year 2015 Department of Defense Appropriations bill, published yesterday.

The Committee told the NSA to prepare a report “describing all NSA bulk collection activities, including when such activities began, the cost of such activities, what types of records have been collected in the past, what types of records are currently being collected, and any plans for future bulk collection.”

Such a report would be expected to clarify whether NSA bulk collection extends beyond the acknowledged telephone metadata program in Section 215 of the USA Patriot Act.

The required report is to be “unclassified to the greatest extent possible,” the Senate Committee said.

In the reporting requirements that it imposed on NSA, the Senate Appropriations Committee notably went beyond what was required by the Senate or House Intelligence Committees.

The Appropriations Committee also directed NSA to submit additional reports on the total number of records acquired and reviewed by NSA in its bulk telephone metadata program over the past five years, and an estimate of the number of records of U.S. persons that have been acquired and reviewed in the telephone metadata program.

Another unclassified report is required to provide “a list of terrorist activities that were disrupted, in whole or in part, with the aid of information obtained through NSA’s telephone metadata program.”

A January 2014 report of the Privacy and Civil Liberties Oversight Board found that the Section 215 telephone metadata program had “minimal value in protecting the nation from terrorism.”

“We are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack,” the PCLOB report said.

In contrast to the Section 215 bulk telephone metadata program, the PCLOB said in a report this month that the Section 702 program to collect the communications of targeted non-U.S. persons abroad “has proven valuable in a number of ways to the government’s efforts to combat terrorism,” and that it had enabled the government to “discover previously unknown terrorist operatives and disrupt specific terrorist plots.”

The Board cautioned, however, that the 702 program “may allow a substantial amount of private information about U.S. persons to be acquired by the government, examined by its personnel, and used in ways that may have a negative impact on those persons.”

An estimate of the amount of such U.S. person information collected under the Section 702 program was not specifically required by the Senate Appropriations Committee.

Update: Identical reporting language was included by the Senate Appropriations Committee last year in its report on the FY2014 Defense Appropriations bill (h/t @byersalex), yet the required NSA reports were not produced.

At Emptywheel, Marcy Wheeler questions the utility of the proposed reports, particularly since the Senate Committee language lacks a clear, unambiguous definition of “bulk collection.”

The House of Representatives yesterday approved an amendment to cut the budget for the National Security Council by one third in response to NSC moves to block congressional access to information.

“Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees,” complained Rep. Rodney Frelinghuysen (R-NJ), who introduced the amendment. It was not immediately clear which instances of withholding he was referring to.

“Accurate, complete, and timely reporting by the Department of Defense is essential for the [Appropriations] committee to conduct its oversight responsibilities,” added Rep. Peter Visclosky (D-IN), who endorsed the amendment to cut the NSC budget.

“Over the past few years, the size of the National Security Council’s staff has grown, and it appears that they have moved beyond their Presidential advisory role to involve themselves in decisions which are not in their purview,” said Rep. Frelinghuysen.

The amendment to reduce the FY 2015 NSC budget by $4.2 million, or approximately one-third, passed the House on a voice vote.

Intelligence community whistleblowers would have been able to submit their complaints to the Privacy and Civil Liberties Oversight Board (PCLOB) under a proposed amendment to the intelligence authorization act that was offered last week by Rep. Tulsi Gabbard (D-HI).

This could have been an elegant solution to the whistleblowing conundrum posed by Edward Snowden. It made little sense for Snowden to bring his concerns about bulk collection of American phone records to the congressional intelligence committees, considering that they had already secretly embraced the practice.

The PCLOB, by contrast, has staked out a position as an independent critical voice on intelligence policy. (And it has an unblemished record for protecting classified information.) The Board’s January 2014 report argued cogently and at length that the Section 215 bulk collection program was likely unlawful as well as ineffective.

In short, the PCLOB seemed like a perfect fit for any potential whistleblower who might have concerns about the legality or propriety of current intelligence programs from a privacy or civil liberties perspective.

But when Rep. Gabbard offered her amendment to the intelligence authorization act last week, it was not voted down– it was blocked. The House Rules Committee declared that the amendment was “out of order” and could not be brought to a vote on the House floor.

Several other amendments on transparency issues met a similar fate. These included a measure proposed by Rep. Adam Schiff to require reporting on casualties resulting from targeted killing operations, a proposal to disclose intelligence spending at the individual agency level, and another to require disclosure of the number of U.S. persons whose communications had been collected under FISA, among others.

In dismay at this outcome, Rep. Rush Holt (D-NJ) and I lamented the “staggering failure of oversight” in a May 30 op-ed. See The House Committee on Intelligence Needs Oversight of Its Own, MSNBC.

The House did approve an amendment offered by Rep. John Carney (D-DE) to require the Director of National Intelligence “to issue a report to Congress on how to improve the declassification process across the intelligence community.” While the DNI’s views on the subject may indeed be of interest, the amendment failed to specify the problem it intended to address (erroneous classification standards? excessive backlogs? something else?), and so it is unclear exactly what is to be improved.

However, a more focused classification reform program may be in the works.

Rep. Bennie Thompson (D-MS), the ranking member of the House Homeland Security Committee, said that he would introduce “a comprehensive security clearance reform bill” that would also address the need to shrink the national security classification system.

The Thompson bill, which is to be introduced “in the coming weeks,” would “greatly expand the resources and responsibilities of the Public Interest Declassification Board,” Rep. Thompson said during the House floor debate on the intelligence bill on May 30.

“A well-resourced and robust Board is essential to increasing accountability of the intelligence community,” he said.

Of the many lessons to be learned from the unauthorized disclosures of classified intelligence information by Edward Snowden, one of them is that the congressional intelligence oversight process did not function properly in the years leading up to those disclosures.

It seems indisputable that the intelligence oversight committees did not accurately comprehend or effectively represent the full spectrum of public concern over intelligence surveillance practices. Had they done so, current efforts to limit or revise those practices would have been unnecessary.

But in its new report on the intelligence authorization act for Fiscal Years 2014 and 2015, the House Permanent Select Committee on Intelligence (HPSCI) does not pause for any kind of reflection, let alone self-criticism. It does not inquire why the intelligence oversight process has seemed inhospitable to the kinds of public concerns that emerged in Snowden’s wake. It does not consider whether the Committee’s own practices need to be altered to provide for greater public engagement. It does not even mention Snowden’s name, referring instead to “a former NSA contractor.”

Rather, the new intelligence bill’s primary response to the Snowden episode is to increase the rigor and intensity of current personnel security practices.

“Over the past year, massive unauthorized disclosures of classified intelligence information caused immense damage to our national security. The Intelligence Community might have been able to prevent those unauthorized disclosures if it continuously evaluated the backgrounds of employees and contractors,” the House Committee report asserted.

“Continuous evaluation allows the IC to take advantage of lawfully available government and public information to detect warning signals that the current system of five-year periodic reinvestigation [for renewal of security clearances] misses. That information may include: foreign travel; reports of foreign contacts; financial disclosure information; checks of criminal, commercial marketing, and credit databases; and other appropriate publicly available information,” the report said.

But the Committee did not explain how closer scrutiny of any of these categories of information could have prevented the Snowden disclosures. If Snowden is neither a spy nor in search of financial gain, then none of these factors would have assisted in anticipating or preventing his actions, and an altogether different type of response would be needed.  But the Committee was not prepared to consider that possibility.

The new House Committee report includes several other noteworthy features:

*  “The Committee’s concerns about insufficient intelligence funding… are exacerbated by the great expense necessary to remediate the damage from illegal disclosures of classified information.”

*  The House bill would require declassification review of documents collected in the May 2011 Abbottabad, Pakistan mission that killed Osama bin Laden.

*  The bill would elevate the Inspector General of the National Security Agency, making the position subject to presidential appointment and Senate confirmation.

*  The bill would require the President to establish a written plan for how to respond to an unauthorized disclosure of a covert action program.

*  The bill would require the Director of National Intelligence to submit an annual report to Congress on violations of law or executive order by Intelligence Community personnel.