Version 4.0 – Do We Need A New Privacy and Civil Liberties Board?

One aspect of the President’s Review Group report on NSA surveillance that has gone relatively unnoticed is the recommendation that the current Privacy and Civil Liberties Oversight Board (PCLOB), an independent agency within the executive branch, be dissolved in favor of a new board with greater authority.  The suggestion to reconstitute PCLOB is surprising; the board just recently sprang to life, having received a chair and staff last year for the first time since its creation in 2007.  Congress established the five-member board as an independent executive branch entity after an earlier iteration located in the White House drew fire for lacking independence.

If the past is any guide, political consensus in favor of strengthening oversight often develops where politicians cannot agree on more fundamental reforms.  Oversight is no substitute for getting the scope of the government’s surveillance powers right in the first place.  But designing robust institutions within the executive branch that can monitor the use (and misuse) of national security powers is also crucial to protecting rights and liberties in the long term.

The Review Group recommends that in place of the existing PCLOB, Congress should create a new board that can review foreign intelligence as a whole, not just counterterrorism activities.  The board’s current mandate is restricted, by statute, to the latter.  It also recommends a set of other changes to expand the board’s investigative powers, give it more responsibility, and strengthen its capacity.  These include creating a channel for whistleblowers to report their concerns to the board, shifting certain compliance programs from the NSA to the board, compensating the four members who currently serve in part-time, unpaid positions, and granting the board the power to subpoena private sector records.

The panel is right to point out PCLOB’s weaknesses.  There’s no question that the current PCLOB is underfunded and understaffed.  It’s not only that four of the five members of the board serve part time and without pay.  The staff and budget of the board are also miniscule.  As the board reported two months ago, it has only five staff members, including two employees on detail from other agencies.  Moreover, it requested an FY2014 budget of only $3.1 million.  That amount is not only feather-light in relationship to the overall intelligence budget, which weighs in at $52.2 billion.  It is also far less than the budget requests of other oversight institutions, such as the Inspectors General within various federal agencies ($312 million for the Defense Department IG, $143 million for the Homeland Security IG, and $85 million for the Justice Department IG).  Although PCLOB examines a narrower set of issues than IGs, it is charged with civil liberties oversight of programs that are often exceptionally complex (legally and technically) and that span multiple agencies.  Without substantially more resources, PCLOB is destined to disappoint.

So the call for greater capacity for PCLOB makes plenty of sense.  But there are reasons to move cautiously on some of the Review Group’s recommendations.  First, the call for an entirely new agency presents the obvious problem of start-up costs.  It has taken three iterations and ten years for PCLOB to evolve to its current state.  First created by President Bush in 2004 in response to a 9/11 Commission recommendation, the board was twice reconstituted by Congress in response to justified concerns over a lack of independence.  After the most recent version was established in 2007, it took considerable pressure to move the president and Congress to fill positions on the board: President Obama did not appoint a full slate of nominees to the board until late 2011, and the Senate did not confirm a chair until mid-2013.  At this point, any proposal to reinvent, rather than reform, the board requires a compelling case – one that the Review Group has not adequately made.

Second, the proposed expansion of PCLOB’s mandate to cover foreign intelligence, rather than counterterrorism in particular, might also have a downside.  PCLOB’s current mandate is to analyze, review, and advise on laws and actions undertaken to protect the United States against terrorism.  The Review Group’s concern is that intelligence agencies might attempt to circumvent PCLOB review where programs have a foreign intelligence, but not antiterrorism, purpose.  This is a fair concern, but expanding PCLOB’s mandate also risks re-directing PCLOB from a host of other counterterrorism activities that equally merit scrutiny.  Despite the single-minded post-Snowden focus on electronic surveillance, a range of counterterrorism practices challenge the civil liberties, rights, and privacy of individuals, including expanded terrorist watch lists, the use of informants to monitor religious groups, and intrusive questioning and searches at U.S. borders.  Electronic mass surveillance attracts broad public attention, but counterterrorism policies often have the greatest day-to-day impact on discrete minorities with little political clout, such as non-citizens or Muslims.  PCLOB should be sure to address issues of rights that fall squarely within its existing counterterrorism review mandate but that a majoritarian political process may fail to adequately consider.

Third, the Review Group’s suggestion to transfer portions of intelligence agencies’ compliance programs, like the NSA compliance program, to PCLOB should give pause.  The stated justification is to strengthen public trust and perceptions of these programs’ independence.  Rather than target perceptions, the Review Group might have considered proposals that would actually strengthen the independence of agency-specific oversight mechanisms – such as elevating the separate NSA-appointed Inspector General to be a presidentially appointed, Senate-confirmed position.  Moreover, a wholesale transfer of compliance staff from the intelligence agencies to PCLOB would also risk introducing the organizational cultures and priorities of the intelligence agencies into PCLOB.  An organization with a primary mandate to protect civil liberties and privacy, especially in its infancy, ought to shape its identity deliberately, with careful recruitment of staff firmly committed to the institution and its core mandate. 

About the Author(s)

Shirin Sinnar

Associate Professor of Law at Stanford Law School