Surveillance Oversight Board Was Fun While It Lasted, But That's Pretty Much Over For Now

from the meet-the-new-boss,-same-as-the-old-boss-but-probably-worse dept

Congress -- in the name of oversight -- is going to end up neutering the Privacy and Civil Liberties Oversight Board. Already the victim of endless dicking around by two straight administrations, the PCLOB finally came together when surveillance issues could no longer be ignored. The PCLOB's long-delayed investigations into the NSA's collection programs is just one of many improvements Snowden will end up being prosecuted for.

Things are looking to get worse in terms of the PCLOB being left alone to do its job. As Jenna McLaughlin of The Intercept reports, new stipulations in the annual intelligence budget could jeopardize the PCLOB's effectiveness.

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.

First off, Congress' interference means the PCLOB can't expect frank discussions with the agencies it oversees. Second -- and possibly more problematic -- Congress will be completely in control of the PCLOB's spending. With its hand on the PCLOB's wallet, Congress can steer the board's investigations. There are still enough surveillance hawks in the halls of Congress -- including those in both intelligence oversight committees -- to turn the PCLOB into another form of "oversight" that fully earns its scare quotes.

Not only does Congress have the PCLOB by the purse strings, but it's also tightening them. This isn't a new problem. Over the past decade-plus, the White House has shown little interest in keeping the board fully-staffed or expanding its oversight role. That's not likely to change with the incoming administration.

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.

The problem is "good will and trust" aren't going to be in large supply if intelligence officials feel anything they say to the board in confidence is immediately going to be turned over to members of Congress. And if they start to withhold information, the PCLOB doesn't have the power to compel cooperation.

This is certainly the way many legislators prefer it, especially those that have resisted the installation of effective oversight and the transparency forced on intelligence agencies by the Snowden leaks. The President-elect certainly hasn't given any indication he's a man of transparency or would welcome increased accountability for the nation's intelligence agencies. The easiest thing in the world to do is nothing, and it seems likely that the new appropriations bill, along with the observed tendencies of Donald Trump, will result in several more years of a barely-functioning PCLOB struggling to live up to its name.

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Filed Under: civil liberties, congress, pclob, privacy, surveillance