Privacy & Civil Liberties Board at the heart of Obama’s effort to address NSA surveillance scandal is itself a Washington enigma
The body charged by President Obama with protecting the civil liberties and privacy of the American people exists in shadows almost as dark as the intelligence agencies it is designed to oversee.
The Privacy & Civil Liberties Board (PCLOB) was due to meet Obama at the White House on Friday afternoon at 3pm in the situation room to discuss growing concerns over US surveillance of phone and internet records – or, at least, that’s what unnamed “senior administration officials” said would happen.
The meeting did not appear on the president’s official diary issued to journalists, nor has the PCLOB issued much public confirmation beyond saying “further questions were warranted”.
To be fair, that might be because the PCLOB does not have a website, nor an email address, nor indeed any independent full-time staff. Its day-to-day administration is currently run by a government official on secondment from the office of the Director of National Intelligence.
In fact, even the office address given out by the PCLOB in the few public letters that exist does not appear to be functioning. A security guard at the federal buildings on 2100 K Street in Washington said he had no record of the mystery body that claimed to occupy suite 500.
On Tuesday, Obama announced that the PCLOB would be at the heart of his efforts to address the growing scandal over the National Security Agency’s surveillance programmes.
“I’ll be meeting with them and what I want to do is to set up and structure a national conversation not only about these two programs but also about the general problem of these big data sets because this is not going to be restricted to government entities,” he told Charlie Rose in a TV interview.
Yet, the White House appears to be scrambling to set up infrastructure that can support such a conversation and has placed its trust in a body with a chequered history of independent scrutiny.
Set up as an agency within the Executive Office of the President in 2004, the PCLOB for many years had no members at all. After criticism, in the words of a congressional report, that it “appeared to be presidential appendage, devoid of the capability to exercise independent judgement and assessment or to provide impartial findings and recommendations”, it was reconstituted as an independent agency in August 2007 on the recommendations of the 9/11 commission.
But even then, oversight moved at a glacial pace. Obama nominated two members in January 2011 and a further three in December 2012 but the Senate only confirmed four of them in August 2012. The fifth, chairman David Medine, was confirmed just last month.
Obama told Charlie Rose that it was “made up of independent citizens, including some fierce civil libertarians”.
But there is little in the published biographies to elaborate on that.
Medine is a partner in the law firm DC WilmerHale and previously served as a senior advisor to the White House National Economic Council. From 1992 to 2000, he worked at the Federal Trade Commission and previously worked at the Consumer Financial Protection Bureau and US Securities and Exchange Commission. The White House says he has long been interested in “internet privacy and data security”.
Three of the others meeting Obama on Friday have also worked for the government or courts. Rachel Brand is now a regulatory lawyer at the US Chamber of Commerce, but formerly worked at the Department of Justice. Patricia Wald is a former DC appeals court judge and Elisebeth Collins Cook is also a lawyer at Wilmer Hale, who once worked for the Department of Justice.
Only Jim Dempsey, of the Center for Democracy and Technology, does not appear to have worked for the government or served on the judiciary. The Washington Post described him as “a reasoned and respected civil liberties advocate routinely summoned to [Capitol] Hill by both political parties to advise lawmakers about technology and privacy issues.”
Following a meeting with intelligence chiefs on Wednesday, Medine said: “Based on what we’ve learned so far, further questions are warranted.” He told the Guardian by email on Friday that the board would issue a statement after the meeting with Obama.
NSA director Keith Alexander implied it understood the need for such programmes. “My deputy met with the board yesterday and actually briefed them for a couple of hours on both programs so that they understood,” he told a Senate Appropriations Committee hearing on Thursday.
Official board meetings of the PCLOB are closed to the public, because of the classified issues to be discussed, a notice published on the Federal Register said.
In his email, Medine told the Guardian that the board was moving ahead with plans to step up its operations. He said: “The bipartisan members of the independent board have been at work since last September. In the three weeks since I became chairman, the board is moving rapidly forward to complete its efforts to operate a website and hire permanent staff, the latter being something only the chairman has authority to do.”
A senior administration official defended the White House’s transparency record.
“Over the past few weeks, in the wake of disclosures related to sensitive NSA collection activities, the president directed the Director of National Intelligence (DNI) to declassify information to better contextualize these programs, correct misrepresentations, and provide an opportunity for the dialogue he welcomes about the right balance between national security and privacy,” said the official.
“In fact, yesterday (Thursday), at the request of the President, the Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco directed the DNI – in consultation with the DOJ – to review Foreign Intelligence Surveillance Court opinions and filings relevant to the programs and to determine what additional information the Government can responsibly share about the sensitive and necessarily classified activities undertaken to keep the public safe.” The official said the administration was seeking “to declassify a significant amount of information regarding these programs.”
“The president’s direction is that as much information as possible be made public while being mindful of the need to protect sources and methods and National Security.” the unnamed official added. “In the last few weeks, we have provided enhanced transparency on, and engaged in robust public discussion.”
Speaking later White House spokesman Jay Carney said the PCLOB was required to report to Congress at least twice a year.
“The president will be meeting with a range of stakeholders in the coming weeks on these issues,” added Carney.
4.45pm ET update
The board issued a statement after meeting Obama. It reads, in full:
We were very pleased to meet with the President today. We informed the President that the Privacy and Civil Liberties Oversight Board (PCLOB), an independent, bipartisan federal agency, is undertaking a review of the recently revealed surveillance programs as a top priority. We conveyed our appreciation for the briefings we have received to date. We informed the President that we plan to seek additional briefings, including as to the effectiveness and practical aspects of these programs. We informed the President that as part of our oversight effort, we are scheduling a full day public workshop to seek input from invited experts, academics and advocacy organizations as to the legal bases for these programs and potential options to address privacy and civil liberties concerns.
We discussed with the President our recommendation that every effort be made to publicly provide the legal rationale for the programs in order to enhance the public discussion and debate about the legality and propriety of the country’s counterterrorism efforts.
As we informed the President, and have informed Senators in response to a specific inquiry, we will produce a public report containing our conclusions and recommendations.
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