The national security landscape has significantly changed since the advent of intelligence oversight, roughly 45 years ago. Our senior-most civil liberties oversight bodies must catch up. Specifically, the President’s Intelligence Oversight Board (PIOB) and the Privacy and Civil Liberties Oversight Board (PCLOB) should be combined into a single White House civil liberties and compliance office, with an expanded mission, independent of the federal agencies it oversees, but responsive to the President. This new office should also be purposed for maximum transparency with both Congress and the public. To buttress this proposal, some background and context on the institutional development of intelligence oversight is helpful.
Intelligence oversight within the executive branch has been largely shaped by legislation and presidential orders tied to two major events: the CIA, FBI, and NSA infringement on Americans’ civil liberties in the 1960s-1970s, and the more recent 9/11 terrorist attacks. Due to federal government surveillance abuses, in 1975, Congress established two select committees, the Pike Committee in the House and the and Church Committee in the Senate, to oversee the intelligence community. These committees subsequently became the House Permanent Subcommittee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI). Both committees determined that the executive branch had spied on civil rights activists and anti-Vietnam War protestors’ domestic activities through such intrusive means as unconstitutional wiretaps and then attempted to cover up the wrongdoing.
In response, Congress passed a series of laws (including the Foreign Intelligence Surveillance Act, the Inspector General Act of 1978, and the Intelligence Authorization Act for Fiscal Year 1981) to more effectively regulate intelligence agencies and activities that might infringe upon the rights of U.S. persons. Presidents Ford, Carter, and Reagan also issued a series of executive orders (E.O.s 11905, 12036, 12333, and 12334) that added significant executive branch controls and reporting requirements on the conduct of all intelligence activities, including covert action.
To avoid White House leadership being caught off-guard by future intelligence community mishaps, President Ford established an Intelligence Oversight Board (IOB) in 1976, which through subsequent administrations was moved under the President’s Intelligence Advisory Board (PIAB), but still located within the executive office of the president (EOP) and became known as the President’s Intelligence Oversight Board (PIOB). The PIOB serves as a direct report to the President on intelligence matters. It is chiefly a compliance body and its primary function is to inform the President of intelligence activities that the PIOB believes may be unlawful or contrary to E.O. or presidential directive or impugn the reputation of the intelligence community.
The last update to the PIOB charter was in 2008, when President Bush issued E.O. 13462. It directs: “the [P]IOB shall consist of not more than five members of the PIAB who are designated by the President from among members of the PIAB to serve on the [P]IOB.” In addition, the PIOB has a small but compensated professional staff. Aside from a PIOB executive-director, members of the PIOB serve on a part-time basis, without compensation. Each federal agency that conducts intelligence activities is required to submit a quarterly compliance report to the PIOB. See here for a sample of redacted and publicly released quarterly NSA compliance reports submitted to the PIOB.
As for the PCLOB, the 9/11 Commission Report recommended its establishment. It was created through the Intelligence Reform and Terrorism Prevention Act of 2004, and subsequently made into an independent executive branch agency by the 9/11 Commission Act. The PCLOB has a narrow purpose:
(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; (2) and ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.
The PCLOB is composed of a compensated, full-time chairman and four compensated, part-time members. All members are appointed by the President and require consent of the Senate. Additionally, the PCLOB has a staff composed of an executive director, a general counsel, staff attorneys, and administrative support.
Blind Spot I: Non-Intelligence Activities
National Security Council (NSC) staff or other White House officials overseeing civil liberties and compliance within the intelligence community should also be aware of and receive reports of non-intelligence national security activities that carry commensurate privacy, civil liberties, and reputational or political risk to intelligence activities. The term “intelligence activities” is defined as “all activities that elements of the intelligence community are authorized to conduct pursuant to [E.O. 12333].” Additionally, intelligence activities are conducted for a foreign intelligence (FI) or counterintelligence (CI) purpose.
Unfortunately, there is a glaring gap in the oversight of non-intelligence national security activities. The Department of Defense (DoD) in particular has increased its capacity to conduct a host of high-risk and politically sensitive non-intelligence activities such as cyberspace operations, battlespace awareness, operational preparation of the environment, information operations, and insider-threat/security monitoring that are less regulated and ripe for non-compliance. Additionally, while sometimes these activities are coordinated with the NSC’s counterterrorism directorate (or other relevant directorates), or even approved at the presidential level in some administrations, the back-end reporting to the White House on operations that go awry is not formalized in statute or executive order. Therefore, these non-intelligence activities, especially the ones that are particularly sensitive, need a formalized reporting channel into the White House when they violate law, E.O., policy, or impugn the reputation of the government.
Consider a hypothetical of a non-intelligence activity: an information operations analyst, working at Special Operations Command, uses a powerful open-source tool kit, such as Babel Street, without authorization, intentionally builds a dossier that aggregates intimate details of a U.S. citizen, perhaps even a member of Congress or a domestic, civil-society organization, like the ACLU. This activity is clearly improper, and could be investigated by the DoD inspector general, for example, but intelligence oversight rules do not apply. Because the abuse was not conducted by intelligence personnel — or under intelligence authorities, or for an FI or CI purpose — the violation would not be required to be reported to the PIOB, potentially leaving senior White House officials ill-informed and unable to respond to an egregious civil liberties concern. What’s more, such a lack of comprehensive oversight could also reduce public confidence in our institutions and adversely impact foreign relations if the incident also involves allies or foreign partners.
Blind Spot II: Non-Counterterrorism Activities
As mentioned above, the PCLOB has a singular terrorism focus. However, there are a host of other national security activities that jeopardize both privacy and civil liberties outside the PCLOB’s mandate. Examples of these types of activities include the recent Department of Homeland Security and U.S. Postal Service (USPS) domestic surveillance of civil rights and anti COVID-19 restrictions protestors, questionable counterintelligence programs at the Department of Commerce, and the FBI surveillance of Chinese-Americans.
Furthermore, two current PCLOB members stated that they look forward to future work on “the use of new and enhanced technologies to support counterterrorism activities, including facial recognition technology, artificial intelligence, information technology vulnerabilities, responses to changes in encryption technology, and other surveillance mechanisms.” A concern with this statement is that many of these intrusive technologies that the government is considering using, or is already using, might not be in support of counterterrorism activities (or intelligence activities as defined above) but instead the plethora of other state security functions.
A single organization should analyze and review all U.S. government surveillance activities, laws, regulations and policies, regardless of whether they are counterterrorism-focused, to ensure they are properly balanced with the need to protect privacy and civil liberties.
Policy Proposal: Establish a White House Privacy, Civil Liberties and Compliance Office
To bridge these gaps, the President should create a White House senior director or similar position that reviews both intelligence activities and sensitive non-intelligence national security activities for privacy, civil liberties, and compliance concerns.
This proposed reform would likely require the President to work with Congress to expand the scope and mission of the PCLOB and PIOB and merge them into this newly-formed White House civil liberties oversight office located within the EOP and answering directly to the President. It is critical that this new office have sufficient resources to accomplish its mission. Both the PIOB and PCLOB are woefully understaffed; each office is authorized five members, most of whom are part-time government employees, and a small standing support staff. Due to these staffing shortages, the PCLOB took approximately five years to produce the underwhelming XKeyscore report. Moreover, for most of the PCLOB’s short existence it has operated without the required member quorum to provide agency advice and publish reports.
By statute, this office should be composed of no less than ten full-time and compensated civil liberties and compliance experts, and commensurate staff, detailed from national security agencies or hired directly from outside of government. In addition, the members should be Senate-confirmed and appointed for a five or seven-year term, similar to some of the inspectors general in executive branch agencies.
A merged entity would also ensure the quarterly compliance reviews like those currently conducted by the PIOB are undertaken beyond the intelligence realm, which would more effectively fulfill the PCLOB’s own current oversight mission. PCLOB member Travis Leblanc highlighted this deficiency when he criticized that the PCLOB has displayed an “unwillingness to probe into any possible issues of compliance” during the recently published report on the National Security Agency’s XKeyscore program.
Within the executive branch, independence comes in many degrees. Within DoD, for example, it ranges from a highly-independent statutory inspector general like the DoD IG that isn’t subordinate to the Secretary of Defense, to the less independent Assistant to Secretary of Defense for Intelligence Oversight, who reports to the Secretary, yet is still independent from the intelligence bureaucracy he oversees. Beyond the executive branch, there are legislative oversight bodies, like the HPSCI, SSCI, and GAO, that exercise complete independence. The question is where to strike the balance.
The President needs a top civil liberties and compliance official whose office is independent from the federal agencies it oversees but still responsive to the President’s priorities and advisory needs. Therefore, the administration should ideally work with Congress to ensure that the progeny of the PCLOB/PIOB has the right grade of independence, a broad but clear mandate, and the resources to match. The Biden Administration should also allay congressional concerns over a less independent civil liberties official by offering increased transparency. All reports produced by this office should be shared with the congressional oversight committees and, to the extent possible, redacted for public release. This should be a central part of the trade-off.
Without such oversight reforms, White House leadership is at risk of lacking the necessary insights to weigh critical national security costs and benefits and make informed decisions to protect the constitutional rights of all Americans.
The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Army, the Department of Defense, or the U.S. Government.