House Intelligence Bill Would Limit PCLOB Oversight

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The House Intelligence Committee inserted language in the pending intelligence authorization bill that would bar access by the Privacy and Civil Liberties Oversight Board (PCLOB) to classified information pertaining to covert action.

“Nothing in the statute authorizing the Privacy and Civil Liberties Oversight Board should be construed to allow that Board to gain access to information the executive branch deems to be related to covert action,” according to the new Committee report on the Intelligence Authorization Act for FY 2016 (section 306), published yesterday.

To the extent that covert action is employed against terrorism and is therefore within the scope of PCLOB’s charter, the House Committee action would preclude PCLOB oversight of the implications of such covert actions for privacy and civil liberties.

That “unduly restricts” PCLOB’s jurisdiction, according to Rep. James Himes (D-CT), a member of the House Intelligence Committee who unsuccessfully sought to modify the provision.

It is possible that there is some tacit rivalry between PCLOB and the congressional intelligence oversight committees, particularly since the PCLOB found that the Section 215 program for collection of telephone metadata was unlawfully implemented while the oversight committees had approved and embraced it. (The recurring failure of the intelligence oversight committees to accurately represent broader congressional and public perspectives over the past decade is a subject that remains to be addressed.)

By contrast, the same House bill directed that the DNI shall provide the Government Accountability Office with the access to information that it needs to perform its authorized functions. The relevant directive (ICD 114) “shall not prohibit the Comptroller General [i.e., the head of the GAO] from obtaining information necessary to carry out an audit or review at the request of the congressional intelligence and defense committees.”

The new House Committee measure may be gratuitous in any event, since the PCLOB is an executive branch agency and is already subject to the authority of the Director of National Intelligence to protect intelligence sources and methods, and to regulate access accordingly.

The PCLOB has recently posted a plan for its review of two counterterrorism-related activities governed by Executive Order 12333.

“The Board plans to concentrate on activities of the CIA and NSA, and to select activities that involve one or more of the following: (1) bulk collection involving a significant chance of acquiring U.S. person information; (2) use of incidentally collected U.S. person information; (3) targeting of U.S. persons; and (4) collection that occurs within the United States or from U.S. companies,” the PCLOB plan said.

Yesterday, Senators Dianne Feinstein and John McCain introduced an amendment to the 2016 defense authorization act “to reaffirm the prohibition on torture.” The amendment would limit interrogation techniques to those included in the unclassified Army Field Manual 2-22.3 (Appendix M). And it would require regular review of “to ensure that Army Field Manual 2-22.3 complies with the legal obligations of the United States and reflects current, evidence-based, best practices for interrogation that are designed to elicit reliable and voluntary statements and do not involve the use or threat of force.” The amendment had not yet been voted on as of yesterday.

Update: The origins of the House Intelligence Committee’s apparent animosity towards the Privacy and Civil Liberties Oversight Board were explored by Ellen Nakashima in Upset over op-ed, GOP lawmakers seek to curb privacy board, Washington Post, June 10, 2015.