For Second Year in a Row, HPSCI Tries to Gut PCLOB

As I reported, during the passage of Intelligence Authorization last year (which ultimately got put through on the Omnibus bill, making it impossible for people to vote against), Congress implemented Intelligence Community wishes by undercutting PCLOB authority in two ways: prohibiting PCLOB from reviewing covert activities, and stripping an oversight role for PCLOB that had been passed in all versions of CISA.

In the 2017 Intelligence Authorization HPSCI passed on April 29, it continued more of the same. It does so in two ways:

Requires it to get its appropriations approved by Congress

Section 303 changes the authorizing language for PCLOB to state that it can only spend money on things if Congress specifically authorized it.

SEC. 303. AUTHORIZATION OF APPROPRIATIONS FOR PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.

(a) REQUIREMENT FOR AUTHORIZATIONS.—Sub-section (m) of section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(m)) is amended to read as follows:

(m) FUNDING.—

(1) SPECIFIC AUTHORIZATION REQUIRED.— Appropriated funds available to the Board may be obligated or expended to carry out activities under this section only if such funds were specifically authorized by Congress for use for such activities for such fiscal year.

(2) DEFINITION.—In this subsection, the term ‘specifically authorized by Congress’ has the meaning given that term in section 504(e) of the National Security Act of 1947 (50 U.S.C. 3094(e)).’

(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appropriated to the Privacy and Civil Liberties Oversight Board for fiscal year 2017 the sum of $10,081,000 to carry out the activities of the Board under section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(m)).

At one level, this looks like nothing more than bureaucratic dick-waving, a reminder to PCLOB that Congress can cut off funding if it does things like deign to comment on covert spying activities.

But — particularly given the way the Intelligence Communities stripped PCLOB’s involvement in CISA oversight at the last minute — I wonder whether this will restrict what PCLOB can do under presidential orders. Congress set up PCLOB such that its mandate covers only counterterrorism programs. But with EO 13636 (the EO that set up the information sharing system that, with significant changes, became CISA) and PPD 28, President Obama gave PCLOB a cybersecurity role beyond that defined in statute. So I wonder whether this is a way to further PCLOB remove from cybersecurity oversight than those last minute changes already did.

The authorization still granted PCLOB its requested funding (and that request did lay out those cybersecurity activities), so this may just be, for the moment, a shot across the bow.

Requires the Committee to warn the Intelligence Committees and Intelligence Agency heads before they conduct any oversight

The bill also adds new reporting requires on PCLOB, beyond the biennial reports that go to a number of congressional committees. In short, the new language requires PCLOB to warn the Intelligence Committees and the heads of an intelligence agency before they start doing any oversight.

SEC. 307. INFORMATION ON ACTIVITIES OF PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Section 1061(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (42 U.S.C. 2000ee(d)) is further amended by adding at the end the following new paragraph:

(5) INFORMATION.—

(A) ACTIVITIES.—In addition to the reports submitted to Congress under subsection (e)(1)(B), the Board shall ensure that each official and congressional committee specified in subparagraph (B) is kept fully and currently informed of the activities of the Board, including any significant anticipated activities.

(B) OFFICIALS AND CONGRESSIONAL COMMITTEES SPECIFIED.—The officials and congressional committees specified in this subparagraph are the following:

(i) The Director of National Intelligence.

(ii) The head of any element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)) the activities of which are, or are anticipated to be, the subject of the review or advice of the Board.

(iii) The Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.

Of particular note: if PCLOB warned the spooks, and the spooks prohibited PCLOB oversight (again), it’s not clear how the other committees of jurisdiction — which include the Judiciary, Homeland Security and House Oversight Committee, in addition to the Intelligence Committees — would get notice.

These changes are being made based on an Intelligence Committee claim that they give PCLOB — one of the very few entities that has proven to effectively oversee the Intelligence Community — more “oversight.” But it’s hard to understand how they’ll do anything more than ensure that the Intelligence Committees return to the status quo position where they’re the only entities permitted to (not) oversee the IC.

In other words, HPSCI — of all entities !!! — claims that that committee, which has serially failed at overseeing just about anything, must give the overseers greater oversight.

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.

6 replies
  1. jerryy says:

    Maybe this is why those on the committees do not want that kind of oversight going on:
    .
    http://www.pnas.org/content/113/20/5536.full#ref-list-1

    From the abstract:
    .
    “Several nations currently collect telephone metadata in bulk, including on their own citizens. In this paper, we attempt to shed light on the privacy properties of telephone metadata. Using a crowdsourcing methodology, we demonstrate that telephone metadata is densely interconnected, can trivially be reidentified, and can be used to draw sensitive inferences.”

  2. martin says:

    quote”But it’s hard to understand how they’ll do anything more than ensure that the Intelligence Committees return to the status quo position where they’re the only entities permitted to (not) oversee the IC.”unquote

    Haha. You’re too kind emptywheel. What the HPSCI should get is tarred and feathered. These bastards have finally stepped over the line. What I don’t understand is how the rest of the House voted for this, and could look in the mirror in the House bathroom after voting. I know they had to go the bathroom cause sweat was pouring down their faces. I’m absolutely convinced now the NSA OWNS the Congress…lock..stock and fucking barrel.

  3. blueba says:

    I read this blog fairly often and have high regard for it. One thing which I find a bit annoying is the extensive use of acronyms without reference to what they stand for. Sorry, but I don’t follow so closely that I know what is being referred to by these acronyms.

    This story is unhelpful to me as I am uncertain what HPSCI or PCLOB stand for.

    • martin says:

      quote”One thing which I find a bit annoying is the extensive use of acronyms without reference to what they stand for. “unquote

      Ditto. I’m here every day and still can’t remember what most of them stand for. I once asked Marcy to provide a running list of acronyms as a either a side bar link or even at the bottom of every post. I even tried to make fun of it at one point..but it went over like a lead balloon. As for the HPSCI and PCLOB:

      HPSCI = House Permanent Select Committee on Intelligence..I believe

      PLCOB = Privacy and Civil Liberties Oversight Board.

    • P J Evans says:

      IF you click on PCLOB in the tag list on the right, the second post down will explain some of them.

  4. Rayne says:

    blueba (8:11) — We draw a sophisticated audience here, one which already is very familiar with the acronym’d names and labels, or uses a search engine to figure out what they don’t know. The correct definitions of HPSCI and PCLOB come up first when Googled.

    I know I try to spell out the name once when first used in my posts, but I can’t guarantee it all the time when some acronyms are common AND when I might spend hours researching and writing a post. Ex: my last post took four hours and I’m short on time today, sorry if I don’t spell out VW or explain what Zika is. Sometimes we just don’t have the time to spell it out for everybody.

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