David Medine left the Privacy and Civil Liberties Oversight Board on July 1, 2016, after three years of dedicated service and leadership as the board’s Chairman. As the board’s first Chief Legal Officer, I want to take a moment to reflect on his and the board’s successes.
Chairman Medine had been serving for only a few days when the allegations of the United States Government spying on its citizens came to light, and a fiery American debate on the balancing between civil liberties and privacy and the nation’s efforts to combat terrorism ensued. While the board’s thoughtful and thorough reports on Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act provided to the President and Congress are indeed valuable and offer insightful points of view that add to the public discourse and national policy making (as well as changes to federal laws), other less well-known accomplishments occurred during Medine’s early tenure. Accomplishments that, collectively, launched the board on a path to endure for future generations as a “check” on the Government’s secret activities on the basis of national security.
Medine was the first chairman of the board after it was statutorily modified by Public Law 110–53 Section 801(a), which created a strengthened entity with true bipartisan oversight of the Executive Branch’s counterterrorism activities. Although the board had been statutorily authorized since 2007, it had struggled to remain independent of White House and legislative branch forces. It was not until Medine’s arrival in 2013 that the board was fully constituted with a full-time chairman and four part-time members. The makeup of the board — a chairman and two Democratic board members and two Republican board members — was truly bipartisan. (No more than three of the five members can be from the same political party.) After working closely with all five members, I can unequivocally state that each took seriously his or her oath and responsibility to serve. For example, while a plethora of classified information was being poured onto the Internet, each took the time to verify that the board’s public statements, reports, and open hearings communicated only unclassified or declassified information, notwithstanding their incredible desire to educate the American people. During their tenure, the board found common ground and made significant legal findings and joint recommendations.
The board’s noteworthy, but lesser known successes are primarily administrative in nature. These are the unglamorous and mundane systems and processes that are absolutely necessary for any new entity to move from being a concept or one-off project to a functioning, independent, and relevant institution. Through these efforts, Medine and the board’s members and staff laid the foundation for the board’s future. These lesser known successes include the following:
Email Capability and Internet Presence. Creation of a new federal independent agency meant the opportunity to be truly independent. Independence, however, also meant that the board and the staff had to find their own way to run a federal agency. If the board was to assess legitimacy and appropriateness of government programs, its digital presence was essential to its success. Under Mr. Medine’s chairmanship, the board’s .gov domain, email addresses — its web presence at https://pclob.gov/ — became a conduit to the world, in a matter of weeks. This was no small feat for the board and staff, none of whom had expertise in establishing digital communications for a government entity. Equally remarkable was the board’s adoption of cloud technology. It was one of the first federal agencies to rely upon cloud-based information technologies for its unclassified activities. Also, segregation of IT platforms was imperative to ensure absolute separation of unclassified and classified information. The board’s IT approach was novel and legally compliant with multiple regulations.
Public Discourse, Historical Record Keeping, and Openness. Medine and the four board members were committed to public engagement and openness. First, the board desired and invited public comments by the American people. Thus, the board needed an avenue in which it could receive those comments and share them with others, to promote public discourse and share them in advance of public hearings. Medine was fully supportive of the novel way the staff devised to receive and share comments: a contractual relationship with the entity that provided the same services for the Environmental Protection Agency. The board’s challenge was that the contractor had no comparable pricing model, due to its small size. Mr. Medine supported the negotiation of interim prices, so the board could accept written public comments from around the world. Comments were submitted by international organizations, as well as academia, industry representatives, and nonprofit entities.
Second, during the first year of its full constitution, the board created a legally effective records management program, for both written and electronic records, required by the Federal Records Act. All five board members were committed to proper record handling and compliance for both transparency and historical purposes.
Third, committed to openness, the board published in the Federal Register a final rule regarding Freedom of Information Act, Privacy Act, and Sunshine Act access. This final rule is still in place and is available on the website. While these accomplishments are not front-page news items, they are absolutely essential for a US government agency to properly function.
Furlough and Government Shutdown. On top of an already dramatic year of intense public debate on alleged spying of US citizens, addressing the challenges of a new independent federal agency, another personnel and legal challenge arose — the shutdown of the Executive Branch. Rules applicable to the shutdown had to be researched and applied swiftly and with no prior experience in this area. A scheduled public hearing had to be postponed because of the unavailability of government witnesses, notwithstanding that the Senate-confirmed board members were legally permitted to work. The board’s “Plan in the Event of a Lapse of Appropriations” remains on its website.
Declassification. Last but not least was the board’s commitment to successfully achieve declassification of over 100 previously unreleased facts about the government’s program being operated pursuant to Section 702 of the Foreign Intelligence Surveillance Act. These released key facts provided the American people a fuller context and legal history of the surveillance program.
In summary, unique and novel administrative and managerial legal issues arose. Under Mr. Medine’s leadership, the board and staff appropriately and creatively addressed each of them. These early actions established the structural underpinnings for a successful bipartisan federal agency. Today, the PCLOB continues to serve the American people by analyzing and reviewing the actions the Executive Branch takes to protect the Nation from terrorism, to ensure privacy and civil liberties are preserved.
Thank you, Chairman Medine, for your faithful and dedicated civil service to our nation, and thank you to the full five-member board for your demonstrated bipartisan progress and commitment.