Why Is Congress Undercutting PCLOB?

As I noted last month, the Omnibus budget bill undercut the Privacy and Civil Liberties Oversight Board in two ways.

First, it affirmatively limited PCLOB’s ability to review covert actions. That effort dates to June, when Republicans responded to PCLOB Chair David Medine’s public op-ed about drone oversight by ensuring PCLOB couldn’t review the drone or any other covert program.

More immediately troublesome, last minute changes to OmniCISA eliminated a PCLOB review of the implementation of that new domestic cyber surveillance program, even though some form of that review had been included in all three bills that passed Congress. That measure may have always been planned, but given that it wasn’t in any underlying version of the bill, more likely dates to something that happened after CISA passed the Senate in October.

PCLOB just released its semi-annual report to Congress, which I wanted to consider in light of Congress’ efforts to rein in what already was a pretty tightly constrained mandate.

The report reveals several interesting details.

First, while the plan laid out in April had been to review one CIA and one NSA EO 12333 program, what happened instead is that PCLOB completed a review on two CIA EO 12333 programs, and in October turned towards one NSA EO 12333 program (the reporting period for this report extended from April 1 to September 30).

In July, the Board voted to approve two in-depth examinations of CIA activities conducted under E.O. 12333. Board staff has subsequently attended briefings and demonstrations, as well as obtained relevant documents, related to the examinations.

The Board also received a series of briefings from the NSA on its E.O. 12333 activities. Board staff held follow-up sessions with NSA personnel on the topics covered and on the agency’s E.O. 12333 implementing procedures. Just after the conclusion of the Reporting Period, the Board voted to approve one in-depth examination of an NSA activity conducted under E.O. 12333. Board staff are currently engaging with NSA staff to gather additional information and documents in support of this examination.

That’s interesting for two reasons. First, it means there are two EO 12333 programs that have a significant impact on US persons, which is pretty alarming since CIA is not supposed to focus on Americans. It also means that the PCLOB could have conducted this study on covert operations between the time Congress first moved to prohibit it and the time that bill was signed into law. There’s no evidence that’s what happened, but the status report, while noting it had been prohibited from accessing information on covert actions, didn’t seem all that concerned about it.

Section 305 is a narrow exception to the Board’s statutory right of access to information limited to a specific category of matters, covert actions.

Certainly, it seems like PCLOB got cooperation from CIA, which would have been unlikely if CIA knew it could stall any review until the Intelligence Authorization passed.

But unless PCLOB was excessively critical of CIA’s EO 12333 programs, that’s probably not why Congress eliminated its oversight role in OmniCISA.

Mind you, it’s possible it was. Around the time the CIA review should have been wrapping up though also in response to the San Bernardino attack, PCLOB commissioner Rachel Brand (who was the lone opponent to review of EO 12333 programs in any case) wrote an op-ed suggesting public criticism and increased restrictions on intelligence agencies risked making the intelligence bureaucracy less effective (than it already is, I would add but she didn’t).

In response to the public outcry following the leaks, Congress enacted several provisions restricting intelligence programs. The president unilaterally imposed several more restrictions. Many of these may protect privacy. Some of them, if considered in isolation, might not seem a major imposition on intelligence gathering. But in fact none of them operate in isolation. Layering all of these restrictions on top of the myriad existing rules will at some point create an encrusted intelligence bureaucracy that is too slow, too cautious, and less effective. Some would say we have already reached that point. There is a fine line between enacting beneficial reforms and subjecting our intelligence agencies to death by a thousand cuts.

Still, that should have been separate from efforts focusing on cybersecurity.

There was, however, one thing PCLOB did this year that might more directly have led to Congress’ elimination of what would have been a legislatively mandated role in cybersecurity related privacy: its actions under EO 13636, which one of the EOs that set up a framework that OmniCISA partly fulfills. Under the EO, DHS and other departments working on information sharing to protect critical infrastructure were required to produce a yearly report on how such shared affected privacy and civil liberties.

The Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security (DHS) shall assess the privacy and civil liberties risks of the functions and programs undertaken by DHS as called for in this order and shall recommend to the Secretary ways to minimize or mitigate such risks, in a publicly available report, to be released within 1 year of the date of this order. Senior agency privacy and civil liberties officials for other agencies engaged in activities under this order shall conduct assessments of their agency activities and provide those assessments to DHS for consideration and inclusion in the report. The report shall be reviewed on an annual basis and revised as necessary. The report may contain a classified annex if necessary. Assessments shall include evaluation of activities against the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles, and frameworks. Agencies shall consider the assessments and recommendations of the report in implementing privacy and civil liberties protections for agency activities.

As PCLOB described in its report, “toward the end of the reporting period” (that is, around September), it was involved in interagency meetings discussing privacy.

The Board’s principal work on cybersecurity has centered on its role under E.O. 13636. The Order directs DHS to consult with the Board in developing a report assessing the privacy and civil liberties implications of cybersecurity information sharing and recommending ways to mitigate threats to privacy and civil liberties. At the beginning of the Reporting Period, DHS issued its second E.O. 13636 report. In response to the report, the Board wrote a letter to DHS commending DHS and the other reporting agencies for their early engagement, standardized report format, and improved reporting. Toward the end of the Reporting Period, the Board commenced its participation in its third annual consultation with DHS and other agencies reporting under the Order regarding privacy and civil liberties policies and practices through interagency meetings.

That would have come in the wake of the problems DHS identified, in a letter to Al Franken, with the current (and now codified into law) plan for information sharing under OmniCISA.

Since that time, Congress has moved first to let other agencies veto DHS’ privacy scrubs under OmniCISA and, in final execution, provided a way to create an entire bypass of DHS in the final bill before even allowing DHS as much time as it said it needed to set up the new sharing portal.

That is, it seems that the move to take PCLOB out of cybersecurity oversight accompanied increasingly urgent moves to take DHS out of privacy protection.

All this is just tea leaf reading, of course. But it sure seems that, in addition to the effort to ensure that PCLOB didn’t look too closely at CIA’s efforts to spy on — or drone kill — Americans, Congress has also decided to thwart PCLOB and DHS’ efforts to put some limits on how much cybersecurity efforts impinge on US person privacy.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

28 replies
  1. Mitt Rumsey says:

     
    “The Order directs DHS to consult with the Board in developing a report assessing the privacy and civil liberties implications of cybersecurity information sharing and recommending ways to mitigate threats to privacy and civil liberties.”
     
    PCLOB & its vaunted opinions & EO nnnnn reports due nn months from now are all just a PITA to the TLAs & will be dumped down the cyber-oubliette at the earliest opportunity.
     
    DHS will be dissolved immediately by the next president as a politically popular move to shrink gov’t. & won’t exist a year from now.  (Maybe that’s a good thing.  Never did care for that “homeland” designation.)

  2. orionATL says:

    “That is, it seems that the move to take PCLOB out of cybersecurity oversight accompanied increasingly urgent moves to take DHS out of privacy protection.”

    about those “increasingly urgent moves to take dhs out of privacy protection”

    and about the urgent, stealth moves to pass the cisa legislation?

    just what IS the reason for unstated urgency behind knee-capping dhs – dhs? and privacy protection?

    just what WAS the reason for the unstated urgency behind sneaking cisa thru congress in a spending bill?

  3. orionATL says:

    building surveillance state fascism, one legislative act at a time.
    .

    what goes on behind those 10 foot tall doors:
    .

    [… At a summit to help pass CISA last year, Ann Beauchesne, the chamber’s lead CISA lobbyist, got up and asked NSA Director Adm. Mike Rogers how the Chamber of Commerce could “be helpful to you?” She pledged a renewed lobbying effort even — as The Intercept previously noted — suggesting a viral marketing campaign to build public support akin to the “ALS ice bucket challenge.”…]

    https://theintercept.com/2015/12/24/cisa-party/ .

    and

    https://theintercept.com/2015/04/01/nsa-corporate-america-push-broad-cyber-surveillance-legislation/

  4. orionATL says:

    re #4

    are you curious about the u.s. chamber of commerce’s interest in surveillance programs for america?

    would you like to know why nsa’s admiral rodgers would be chatting up the c of c’s ann m. beauchesne?

    would you like to know who the hell ann beauchesne is?

    well read on. you will discover the u.s. chamber of commerce is extremely well-organized, and is “well-positioned to take advantage of” (as the saying goes) opportunities government legislation can offer for rent-seeking by corporations at public expense:
    .

    https://www.uschamber.com/ann-m-beauchesne

    • TomVet says:

      Nice list of articles there. And all of them chock full of misinformation about CISA. The little lady is just bubbling with bullshit, isn’t she?
      .
      What I don’t understand is why our Congresscritters listen to them instead of the millions of constituents who told them not to pass this awful bill. Must be time for some tar and feathers and running some folks out of town on a rail.

      • orionATL says:

        right on.

        honestly, i think the only people who really know what is going on are a few dozen individuals closely connected to making government surveillanc operate in a certain way and in a certain direction – nsa/fbi surveillance types, whitehouse/doj legal types, corporate lobbyists like beauchesne and others, and a few, just a few, congressgoobers.

        i can tell you one thing for sure; i don’t know what is going on. but i can guarantee that corporations getting “paid” by gov to spy on the customer-base/citizenry is integral to the plan.

  5. scribe says:

    Short answer to the question your headline poses: “Because TPTB who run the Administration, Congress, and the courts don’t much like plebs like us having civil liberties, much less protecting them”.

  6. orionATL says:

    ew’s guesses are better than most.

    here’s another guess. since the nytimes 2006 disclosures of electronic sping by bushco/nsa, and particularly since may, 2013, the american paramilitary security apparutus, nsa/cia/fbi, has come under repeated scrutiny, probably more so than even in the time of senator church.

    it seemed likely that an intelligence sector counterattack would start to show up sooner or later to close the barn door. the two congressional surveillance bills enacted this year might be considered the beginning of the counterattack.

    alternatively, and just as naievely, this administration has been very supportive and extremely cosey with the american intelligence paramilitary. that will have to end with the impending presidential brouhaha. now may have been the last time to take care of business for upwards of a year.

  7. orionATL says:

    i think the rage and vindictiveness shown by some of twittering class toward ammon bundy and gang is contemptible.

    this is precisely the kind of howling, righteous behavior rightwing morons display all the time.

    occupying a federal nature preserve building is not that big a deal unless the fed fbi and a doj prosecutor want to make it one.

    speaking of the feds, i would like to know the facts of this matter, and i dont mean just the facts limited to why two ranchers in a family are going back to jail for 5 years total.

    did blm actually try to force the family of its land over a period of years?

    the federal govt has a long history of harshly coercive, if not abusive, use of eminent domain.

    was there in fact arson? or did blm and a doj prosecutor manufacture this charge?

    why are the family members prevented from speaking publicly about their treatment? have they been threatened with 30 years in jail if they speak out?

    have terrorism statues actually been used in this case? was that a reasonable use if so?

    but back to my original point. if liberals/progressives howl for blood like a mob in chase in this situation, can they then whine about receiving that treatment from rightwing cretans?

  8. orionATL says:

    here is, or may be, a written statement by ammon bundy. i don’t know anything about the site that published this doc. there a facts (or allegations) in the statement that can be checked to judge for oneself just how much of bundy’s concern about the treatment gov handed out to the hammonds is warranted.

    .

    https://marycarmelnews.wordpress.com/2015/11/24/hammonds-physically-threatened-by-federal-agents-for-speaking-out%e2%80%8f/
    .

    bundy is no james madison and the business about returning “the land” to its “owners, the people” is a common, vague rationale. of greatest interest to me are facts relating to the fairness of the u. s. governments treatment of the hammonds over a long period of time, whether arson was a fair or a contrived charge, and whether federal prosecutors did in fact use any terrorism statutes.

    • orionATL says:

      it looks like there are three entertwined but distinct stories regarding events in eastern oregon:

      1) – the bundy gang’s revolt against government, primarily, but not exclusively, the federal government and primarily the blm which manages federal land used by ranchers for grazing. the hammond family’s problems with federal law have provided the bundy boys with an opportunity for action.

      2) the events and facts surrounding the arson trial of the hammond father and son, particularly whether there was in fact a serious case of arson, and whether the u. s. attorney made any effort to manufacture a criminal case against the hammonds to punish them for combating the blm or to force them from their land so that the blm can have that land to complete the wildlife preserve. whether there was use or misuse of any terror statutes would be of great interest here.

      3) the longform story of the struggle between the hammonds and the blm/federal gov over possession of the land(s) the hammonds owned. this struggle has gone on for a couple of decades it seems. an important question here would be whether blm used tactics over several years to harm the hammonds ability to earn a livelihood.

      • orionATL says:

        #14 above still holds; there are three seperate stories here.

        i am most interested at present in events connected to the second – the hammonds’ trial, sentencing, and resentencing which i am increasingly convinced was a grossly disproportionate execution of justice.

        the bundy boys are another story altogether and much less interesting to me. their efforts have been explicitly, publicly disavowed by the hammond family. nonetheless, they sure as hell are directly responsible for keeping this story from dissapearing into a federal prison.

    • martin says:

      Orion, if you want to know more info on the background of the major people involved in the Oregon fiasco, you can do no better than Mike Vanderbough as he and a lot of the 3% regulars have been up to their neck, in the Patriot movement since the 90’s, and have been at every flareup/protest/standoff since, not to mention carrying the real banner of “patriot” movement.

      While the regulars at SipseyStreet do NOT support the Bundy crew in Oregon, they have plenty to say, notwithstanding should the FBI/ATF/DHS/state LEO decide to raise their middle finger to due process, the standing oath for 3pers is No More Free Waco’s. As the person in the picture has stated in the past, when asked by the FBI if as a milita member, he would travel to support the Freemen, in Montana, he replied…”Why would I do that, when there’s plenty of you Federal sonsabitches right here”(Arizona).

      http://sipseystreetirregulars.blogspot.com/2016/01/no-more-free-wacos-national-three.html

      As for the person that said it, here is his current views regarding the Oregon fiasco.

      http://sipseystreetirregulars.blogspot.com/2016/01/from-bob-wright-why-bunkerville-was-so.html

      Notwithstanding the MSM, as far as the rest of this nation, they don’t know diddly fucking squat about the background regarding this event.

  9. haarmeyer says:

    I read the drone op-ed written by David Medine. My guess is that upon reading the proposal section at the bottom of it, the JAG offices of all the military branches dispatched their congressional liaisons to go talk to the committee chairs in Congress before the ink dried on the article to say the military would be somewhere between outcry and revolt if such recommendations ever came to pass.

    The military JAGs don’t approve wholeheartedly of the drone program, they’re quite vocal that no institution which does not wear uniforms and isn’t subject to the UCMJ and LOAC should have anything to do with flying drones that fire missiles.

    But the idea of allowing attorneys picked precisely because they have no military experience to judge decisions on military targeting and strategy runs about as counter to their notion of a chain of command as is humanly possible. They frequently point to such a process during the negotiations for the 1977 APs — specifically that countries with no military and no presence ever in any war would make decisions over the laws governing war — as to why the treaties failed to be ratified by the U.S. then and would fail if ever submitted again in the future.

    That was also the refrain during the 1949 GC negotiations when the ICRC produced the Stockholm document, lest anyone think that’s just a facet of the U.S. military establishment. Militaries believe they have the right to negotiate the rules of war amongst those who will do the fighting and dying.

    If Medine wants the PCLOB to sit at that table, he will have to justify why the lawyers in the military specifically trained to evaluate the legality of military targets should be barred from making the decisions they were trained to make, and why his lawyers without such training should make them instead. That doesn’t mean the decisions are being made well, but it does mean that he needs to show why he could make them better.

  10. orionATL says:

    one witness to hammonds’ actions and intent was 13 at the time of event and 24 on testifying. a (very?) conservative blog included this info about that young (at the time) witness:

    from comments appended to patterico cite:

    [… (o) Federal attorneys, Frank Papagni, hunted down a witness that was not mentally capable to be a credible witness. Dusty Hammond (grandson and nephew) testified that Steven told him to start a fire. He was 13 at the time and 24 when he testified (11 years later). At 24 Dusty had been suffering with mental problems for many years. He had estranged his family including his mother. Judge Hogan noted that Dusty’s memories as a 13-year-old boy were not clear or credible. He allowed the prosecution to continually use Dusty’s testimony anyway. When speaking to the Hammonds about this testimony, they understood that Dusty was manipulated and expressed nothing but love for their troubled grandson…]

  11. orionATL says:

    on who is a terrorist and who isn’t.

    the hammons, father and son, are convicted terrorists.

    they were convicted on the basis of a 1996 federal law aimed at eco-terrorists.

    that may be why the trial judge, who was at trial explicitly, on record, averse to a harsh sentence, felt forced by the 9th circuit descion to impose the much harsher sentence.

  12. orionATL says:

    re the outline in #14:

    report on storyline #1. the bundy boys and the “authorities” chasing them around the square continue to provide news opportunities for the media and excitement for the nation.

    it seems fair to me that if you have a permit to use a rifle or pistol and you use it to intimidate, no matter what obfuscating words you use to cloak your intimidating intent, then your right to a permit for any weapon should be withdrawn.

    report on storyline #2.

    the hammonds, father and son, are in jail for five years. as ken white explains at popehat –
    https://popehat.com/2016/01/04/what-happened-in-the-hammond-sentencing-in-oregon-a-lawsplainer/

    this sentence, it seems, is not considered “cruel and unusual punishment” (that’s 8th amendment speak) from the viewpoint of our legal system. in fact, our court system (working in tandem with our legislative system i would add) has visited harsher punishments on citizens for lesser crimes.

    but five years out of these men’s lives for victimless lawbreaking is clearly excessive. the pain doesn’t stop there, though. the father and son (and families) must pay a $400,000 fine. i don’t know anything about the rarionale for this fine, but i would not be at all surprised if the fine and imprisonment accomplish what the hammond family has resisted for decades, the loss of their land to the federal government and its incorporation into the malheur wildlife preserve.

    as far as i can tell, the principal criminal acts of the son was to hunt and kill deer in a federal wildlife preserve, set a fire to incinerate evidence, and report the fire as accidental.

    federal preserves are not hunting preserves. the hammond son (in his 40’s) should not have had any doubt about the illegality of what he was doing as leader of a hunting party.

    but the guy has spent a year in jail. how much more time does a knucklehead need to spend in jail in order to realize what he did was stupid? i’d hazard none.

    unfortunately for the hammonds, there is in this case a mandatory minimum sentence legislated by congress because it involves “terrorism” . terrorism? yeah, terrorizing deer apparently. there were no humans around to be terrorized.

    the judge in the trial thought the minimum 5 year penalty excessive and refused to impose more than a year on the son and 3 months on the father. our doj was not happy; it always appeals any failure to mete out those minimum penalties and the 9th circuit appeals court rubber-stamped the doj appeal.

    it is still not clear to me how the doj legitimized tossing a “terrorism” grenade into what would seem to be a rather ordinary tresspass, poaching, and arson crime in an isolated high-plains desert location. the law involved is apparently a 1996 congressional gem designed to punish eco-terrorism.

    this is the second of three major questions about the hammond trial:

    1 – the length of sentence

    2- the use of a terrorism statute for the crimes alleged

    3 – whether the trial was part of a blm/doj effort to use the hammonds’ actions to take their land for federal use.

    i don’t know the rationale for using a terrorism statute. but “terrorism” generally refers to a tactic deliberately used by a political organization to freighten a population. i don’t see how it applies here, again, unless we’re talking deer terrorism.

    it does concern me that there is the possibility that “terrorism” in this case is, to the doj, merely the rough equivalent of “ignoring federal law or aggravating the federal government”. that would be a profound and very dangerous use of the term.

    it has been suggested that in this case something that i had worried might happen has happened, that terrorism statutes are going to be abused in the same way that the rico statutes have been abused. rico statutes were initially designed to clobber the mafia; since their enactment, however, they have proved so handy that they have been applied far afield from the original mobster target.

    all the more so abused, i would add, as muslims in america have discovered, if the federal government takes a less than impartial legal/political interest in the outcome of a criminal activity or trial.

    in any event, as bmaz wrote here a long time ago, there are many, many ways the criminal justice system can hurt you.

  13. orionATL says:

    well, here is some thinking along my line. i do not approve, ever, of accepting injustice at face value. i think the 9th circuit should have done better. indifferent, too busy to bother with small potatoes, cowardly (as in state’s secret and espionage act cases), or intellectually lazy judges do this country no favor.

    http://blog.simplejustice.us/2016/01/05/hammonds-sentence-just-a-banal-miscarriage-of-justice

    taken from the bottom of popehat article. /

  14. orionATL says:

    there isn’t much doubt in my mind that the hammonds were tried by the u. s. attorney’s office, and will be imprisoned for five years, on charges that were intended to do them maximum harm. in this respect, charges that did not have to be brought, e. g., arson, could have been replaced by fines or lesser charges that could have been brought. indeed, the u. s. attorney’s office clearly tried to strong arm a plea bargain with the hammonds by offering the opportunity to plead to lesser charges. the hammonds refused. the u. s. attorney then proceeded with the more serious charges, though it could nonethless have tried the hammonds on those lesser charges (prosecutorial discretion). as it has turned out, doing so would have resulted in a better outcome for the hammonds, the u. s. attorney’s office, i. e., the u. s. department of justice, and the u. s. bureau of land management.

    the actual outcome of the u. s. attorney’s office successfully strong arming a couple of cantakerous ranchers is a public fuss involving ammon bundy and gang that has created a fable that will last and may guide behavior of other ranchers and residents toward both the blm and the u. s. attorney’ s office for years. whether it calms or stokes conflict will play out.

    the missing information here is why the u. s. attorney chose to go after two incidents of burning in or onto blm land at malheur wildlife preserve where lesser charges would have been sufficient future deterrent. i’d bet there were negotiations between blm anf the doj pushing for a federal grand jury, for indictment, and trial as an excellent opportunity to get the hammond ranch into blm/federal gov hands. in both cases the “arson” could have been understood as arising from ranching practice and necessity. in the one case, the arson, as the u. s. attorney wrote, was intended to ptotect winter feed. in the second, no one has said, but i suspect the “hunting” , “poaching” , burn the bodies arose out of an effort to destroy a herd of deer considered a nuisance.)

    to my mind the doj treatment of the hammonds is directly analogous to its treatment of thomas drake, john kiriakou, and jeffrey sterling – a federal agency blm, nsa, and cia wanted to exact revenge on these parties. the doj obliged by constructing cases based on one or two gotchas. the juries agreed. the doj trumpets justice done, the lawbreakers go to jail. the nation knows nothing of this –

    except, in the hammonds case, for the religious fanatic ammon bundy.

    on the other hand, cliven bundy, gen david pettaeus, cia director brennan, lloyd blankfein, and jamie daemon are walking free today. the moral is clear, doj is a bully that picks its victims carefully to insure that they do not have political or financial support sufficient to challenge the doj.

    as an aside, i have wondered if bundy’s father’s very public conflict in the spring of 2014 could have been triggered by his knowledge of what had happened to the hammonds in 2011-12 in the neighboring state of oregon.

  15. orionATL says:

    first mention i’ve found of blm’s direct interest in the hammond matter, specifically in insisting on an arson charge:

    http://www.oregonlive.com/pacific-northwest-news/index.ssf/2012/06/eastern_oregon_father-son_ranc.html

    from a comment at patterico

    the blm working with the u. s. attorney’s office is an obvious possible scenario to explain the tenacious federal legal attack on the hammonds (state apparently declined to prosecute). blm public statements about “caring for the safety of our employees” smacks of the typical public piety organizations use to diguise their actions or motives. working to prove and then charging in federal court, arson in two trivial-in-consequence fires set 5 years apart (which were set and extinguished by the hammonds) would seem like a fruitful approach to possibly acquire control of the hammond land, said to be the last private land in the malheur nature preserve.

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