The Incredible Disappearing PFIAB

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Smintheus provides a good background on Bush’s Executive Order to gut PFIAB (h/t scribe).

On Friday afternoon the White House posted without fanfare a new Executive Order that revamps an important though little known intelligence board. There are a few minor changes, but the most radical revision appears to be that the board has now been stripped of nearly all its powers to investigate and check illegal intelligence activities. It’s difficult to see what legitimate reasons there could have been for gutting the oversight activities of the board in this way, and the WH has not explained the changes.

[snip]

The newly revised IOB is much more passive. Gone is the duty to review agency guidelines regarding illegal intelligence activities. Gone is the duty to hold accountable the intelligence watchdog offices, such as inspectors general, who are supposed to serve as a bulwark against illegal activities.

Gone is the duty ("shall…forward") to take illegal activities directly to the Attorney General.

I wanted to add just a few details of context.

First, recall that the referrals by IOB–and the absence of any response to such referrals–got Alberto Gonzales in trouble.

In 2005, Gonzales had assured Congress there were no violations of privacy associated with the PATRIOT Act. But last year it became clear that Gonzales received reports of at least six violations.

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

When cornered on his lie, Gonzales invented some mumbo jumbo about how violations that get reported to the IOB aren’t really violations.

On the strict question of whether Gonzales, you know, lied, he pled context: he was speaking earlier about broader problems with the Patriot Act. But that’s obviously wrong, since the FBI’s NSL authority for intelligence investigations derives from the Patriot Act. So then he sought to redefine what we should mean by "abuse." Just because a problem with a National Security Letter is serious enough to require notification of the president’s Intelligence Oversight Board (IOB), he said, doesn’t mean it’s a big deal.

IOB violations, which is what I want to refer to these as — is IOB violations — referrals or violations made to the Intelligence Oversight Board. These do not reflect, as a general matter, intentional abuses of the Patriot Act.

There was no sign that the six reported abuses were ever addressed by Gonzales or anyone else. But now, with this new EO, apparently they might never get referred to the Attorney General at all–the DNI only has to refer such issues if they constitute crimes.

(ii) [the DNI shall] forward to the Attorney General information in such reports relating to such intelligence activities to the extent that such activities involve possible violations of Federal criminal laws or implicate the authority of the Attorney General unless the DNI or the head of the department concerned has previously provided such information to the Attorney General;

So your garden variety abuse of privacy probably would just get buried under the DNI’s desk. Which, of course, also means that Congress will only learn about such violations in the privacy of an Intelligence Committee briefing, and not a more public Attorney General hearing.

Also note this new clause, which–if the DNI bottleneck already didn’t–guards against any suggestion that there should be legal repercussions from an IOB discovery of an intelligence problem.

(d) This order is intended only to improve the internal management of the executive branch and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies or entities, its officers, employees, or agents, or any other person.

Even if the IOB determines the FBI has been abusing your privacy, that won’t help you sue the government for such abuse.

Another interesting bit of background this seems to respond to is the whole Fourth Branch controversy. You’ll recall that PFIAB started refusing to comply with regulations on classification and declassification at the same time Mr. Fourth Branch did. And the spreadsheet showing whose emails disappeared from the White House indicates that a lot of PFIAB emails went missing.

So what, then, does it mean that this EO changes the restrictions on use of classified information? It used to be,

Each member of the Pfiab, each member of the Pfiab’s staff and each of the Pfiab’s consultants shall execute an agreement never to reveal any classified information obtained by virtue of his or her services with the Pfiab except to the President or to such persons as the President may designate.

Now, the restriction against revealing any classified information has been changed to limit unauthorized disclosure.

(b) Any person who is a member of the PIAB or IOB, or who is granted access to classified national security information in relation to the activities of the PIAB or the IOB, as a condition of access to such information, shall sign and comply with the agreements to protect such information from unauthorized disclosure. This order shall be implemented in a manner consistent with Executive Order 12958 of April 17, 1995, as amended, and Executive Order 12968 of August 2, 1995, as amended.

So, if you’re Ray Hunt and, pursuant to information you learned on PFIAB, you’ve got intelligence on Kurdistan, does that mean you can reveal that information to designees within Kurdistan?

We’ll probably never know, since the newfangled PIAB doesn’t appear to be forthcoming with such information.

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32 replies
  1. billinturkey says:

    Why are they bothering to do this?

    I mean, this looks like serious pre-emptive ass-covering.But if it was there’d only be a point to it if Mukasey was less likely to punt on referrals to him by PFIAB than Gonzales was.

    But presumably he isn’t. So why do this?

      • emptywheel says:

        I don’t buy it. FIAB’s relationship to intelligence hasn’t changed. What has changed its oversight ability–and that has been gutted. So it has fewer ways to actually CHANGE intelligence.

  2. perris says:

    On Friday afternoon the White House posted without fanfare a new Executive Order that revamps an important though little known intelligence board. There are a few minor changes, but the most radical revision appears to be that the board has now been stripped of nearly all its powers to investigate and check illegal intelligence activities. It’s difficult to see what legitimate reasons there could have been for gutting the oversight activities of the board in this way, and the WH has not explained the changes.

    we’re looking at cheney’s team “b”

    In 1972, President Richard Nixon returned from the Soviet Union with a treaty worked out by Secretary of State Henry Kissinger, the beginning of a process Kissinger called “détente.” On June 1, 1972, Nixon gave a speech in which he said:

    “Last Friday, in Moscow, we witnessed the beginning of the end of that era which began in 1945. With this step, we have enhanced the security of both nations. We have begun to reduce the level of fear, by reducing the causes of fear—for our two peoples, and for all peoples in the world.”
    But Nixon left amid scandal and Ford came in, and Ford’s Secretary of Defense (Donald Rumsfeld) and Chief of Staff (Dick Cheney) believed it was intolerable that Americans might no longer be bound by fear. Without fear, how could Americans be manipulated? And how could billions of dollars taken as taxes from average working people be transferred to the companies that Rumsfeld and Cheney – and their cronies – would soon work for and/or run?

    Rumsfeld and Cheney began a concerted effort – first secretly and then openly – to undermine Nixon’s treaty for peace and to rebuild the state of fear.

    They did it by claiming that the Soviets had a new secret weapon of mass destruction that the president didn’t know about, that the CIA didn’t know about, that nobody knew about but them. It was a nuclear submarine technology that was undetectable by current American technology. And, they said, because of this and related-undetectable-technology weapons, the US must redirect billions of dollars away from domestic programs and instead give the money to defense contractors for whom these two men would one day work or have businesses relationships with.

    The CIA strongly disagreed, calling Rumsfeld’s position a “complete fiction” and pointing out that the Soviet Union was disintegrating from within, could barely afford to feed their own people, and would collapse within a decade or two if simply left alone

    these are maggweots…that story was released BEFORE we went to war in Iraq, BEFORE team “b” invented the information that made believe Iraq was some kind of threat

    and the REAL cia told us in no uncertain terms rumsfeld and cheney were full of crap back in nixon’s days and again before we attacked Iraq

    they don’t want the real cia looking over “team b’s falsified information

    here’s more from the link;

    “They couldn’t say that the Soviets had acoustic means of picking up American submarines, because they couldn’t find it. So they said, well maybe they have a non-acoustic means of making our submarine fleet vulnerable. But there was no evidence that they had a non-acoustic system. They’re saying, ‘we can’t find evidence that they’re doing it the way that everyone thinks they’re doing it, so they must be doing it a different way. We don’t know what that different way is, but they must be doing it.’
    “INTERVIEWER (off-camera): Even though there was no evidence.

    “CAHN: Even though there was no evidence.

    “INTERVIEWER: So they’re saying there, that the fact that the weapon doesn’t exist…

    “CAHN: Doesn’t mean that it doesn’t exist. It just means that we haven’t found it.”

    But Rumsfeld and Cheney wanted Americans to believe there was something nefarious going on, something we should be very afraid of. To this end, they convinced President Ford to appoint a commission including their old friend Paul Wolfowitz to prove that the Soviets were up to no good.

    Wolfowitz’s group, known as “Team B,” came to the conclusion that the Soviets had developed several terrifying new weapons of mass destruction, featuring a nuclear-armed submarine fleet that used a sonar system that didn’t depend on sound and was, thus, undetectable with our current technology. It could – within a matter of months – be off the coast of New York City with a nuclear warhead.

  3. billinturkey says:

    Further to 1: Why bother to change a problematic EO to cover yr ass when you can ‘pixie-dust’ it anyway.

  4. bmaz says:

    No, THIS is serious pre-emptive ass covering. Please be sure to thank your ever diligent Democratic Leadersheep for the Bush friendly Big Brother FISA spy law, with attendant full retroactive immunity. The deal is done. For all those that have been complimenting the new cojones and spine the Dems supposedly recently grew, what say you now???

      • marymccurnin says:

        I just went to the link by Corpus Juris and got to the page. Then it disappeared in a way that has never happen to me before. It went to some weird google page. I hate this cause I think I am being paranoid but given the political/corporate/fascist climate we live in who knows what the fork is really going on.

        • watercarrier4diogenes says:

          Just got back from there myself. No problems to report. You might want to go into your browser’s preferences and clear cache and history. Cookies, too, if you don’t have a lot of sites that you’re auto-logged into.

        • bmaz says:

          Blogger and Blogspot have been having problems the last day or so; nothing to worry about on this one as far as i know.

  5. LS says:

    Sec. 3. Establishment of the President’s Intelligence Advisory Board. (a) There is hereby established, within the Executive Office of the President and exclusively to advise and assist the President as set forth in this order, the President’s Intelligence Advisory Board (PIAB).

    (b) The PIAB shall consist of not more than 16 members appointed by the President from among individuals who are not employed by the Federal Government.

  7. earlofhuntingdon says:

    Given the pervasive, repetitive and serial criminality of this administration, I would expect them to gut at least one more law on their way out the door: RICO.

    I would also urge Hillary or Obama’s Secretary of State to revoke the passports of this administration’s top figures and its political appointees. They are undoubtedly flight risks, at least to countries with no extradition treaties with the United States or those countries in Europe that assert jurisdiction to prosecute war crimes found to have occurred outside their borders.

    Sadly, that all these figures risk prosecution is no guarantee that any will be prosecuted. Immediately after this November’s election, the GOP will seek to undermine the credibility of ALL investigations, no matter their objective. Given the number and seriousness of likely investigations, the GOP has no option but to oppose with Rovian viciousness the very idea of government investivations. (Only when the White House returns to GOP control will they suddenly find religion again.)

  8. sojourner says:

    Referring to the article BMAZ linked to at 5 above, the lede begins, “Under pressure to end an impasse over espionage legislation…” If I understand it correctly, there really is no impasse, is there? The old Patriot Ass-Covering Act died a natural death, and the House has not voted to act on the idiocy that the Senate chose to pass. As I understand it, there is nothing that requires the House to do anything, so why would Pelosi even talk about compromise?

    These people are like the 7-headed snake! Chop one off and the others are still coming…

    EW, I did have a good chuckle reading through your post (and I DID understand the seriousness of what you were relating), but:

    “Also note this new clause, which–if the DNI bottleneck already didn’t–guards against any suggestion that there should be legal repercussions from an IOB discovery of an intelligence problem.”

    Does this mean that Bush gets to walk if he has an intelligence problem?

  9. freepatriot says:

    there is ONE THING we can be sure of

    the repuglitard party will EMBRACE OVERSIGHT WITH RELIGIOUS FERVOR on January 20, 2009

    anybody wanna bet aganst that ???

    • earlofhuntingdon says:

      Not when it’s aimed at GOP figures. How this plays out depends on how large the Democratic majority is in both houses, and how many Bush Dogs are replaced with real Democrats. That will dictate the GOP’s leverage and what tactics remain in its arsenal.

  10. bmaz says:

    Of interest to all of us here is Net Neutrality and insuring that the Toobz remain free and equally open to one and all; indeed, much of what we do here depends on it. In that regard a good friend, Corpus Juris, has written a very good post about the current status of Net Neutrality and the legislation that is being proposed. Go read the post today “H.R.5353, Internet Freedom Preservation Act of 2008” by Corpus Juris.

  11. earlofhuntingdon says:

    Rove’s idea of politics is Clausewitz turned on his head: politics is war pursued by other means.

    What this announcement reveals is an orchestrated campaign to gut the government’s power to keep its records and to oversee and investigate wrongdoing. The debacles at the DOJ – that we know about – are other examples. As is disclosure of the list, published earlier this week, showing the large number of federal regulatory agencies that have so few staff or leaders that they can no longer function (like the FEC). Likewise, the planned chaos known as the public version of the White House communications system.

    The direct cost to recover from this devastation will be hundreds of millions of dollars and tens of thousands of personnel hours. Instituting a functioning White House e-mail system alone will cost tens of millions. The indirect costs will likely be higher.

    The goal is to avoid political accountability and criminal liability, while incidentally shielding lower level figures like Lurita Doan and FEMA’s Brownie from their negligence and maladministration.

    Scott Horton’s description of the DOJ applies equally well to the entire administration – it is a corrupt criminal enterprise – and it now wants to euthanize all the bloodhounds and trackers capable of following them into their temporary political wilderness.

    • watercarrier4diogenes says:

      Horton made an interesting revelation (to me, anyway) in his story about Mukasey’s attitude toward contempt referrals. Mukasey is a former law partner of his. Did he not see this lack of respect for the rule of law on Mukasey’s part coming?

      • earlofhuntingdon says:

        Sorry for the double post.

        Regarding Horton’s early judgment on Mukasey, he expected him to be an objective, competent Attorney General. Horton later admitted he had been dead wrong. He now thinks Mukasey has abandoned any pretense of being the people’s chief law enforcement officer; he is George Bush’s criminal defense attorney. In my words, a competent version of Alberto Gonzales’ Tom Hagan, consigliere to Don Corleone.

  13. earlofhuntingdon says:

    The LA Times article by Greg Miller, cited above, is breathtaking. The Dems should NOT split telecoms immunity from legislation that grants sweeping new spy powers. They should enact neither proposal!

    Current law provides an adequate basis for intelligent activities and will continue to do so well into the 111th Congress’ term. NO such legislation is needed now; better to address the issue under a new president and new Congress, with a larger Democratic majority.

    Refusing to play this GOP game will NOT be make the Dems look weak or unable to act. Most Americans will see it as the Democrat leadership finally waking up and removing the “Kick Me” sign from their rear ends.

  14. earlofhuntingdon says:

    The LA Times article by Greg Miller, cited above, is breathtaking. The Dems should NOT split telecoms immunity from legislation that grants sweeping new spy powers. They should enact neither proposal!

    Current law provides an adequate basis for intelligent activities and will continue to do so well into the 111th Congress’ term. NO such legislation is needed now; better to address the issue under a new president and new Congress, with a larger Democratic majority.

    Refusing to play this GOP game will NOT be make the Dems look weak or unable to act. Most Americans will see it as the Democrat leadership finally waking up and removing the ”Kick Me” sign from their rear ends.

    • CTuttle says:

      Heh, you’re so outraged ya had to repeat it, eh Earl?
      I posted the article at DU and it is getting plenty of feedback already!

      • earlofhuntingdon says:

        Thanks for post and citing the article. My double post was unintentional, as was the reference to “Democrat” leadership.

        That leadership continues to dumbfound. It’s like they’re the new geeks at some trendy southern Californian high school and they can’t take the ribbing from the class clowns or the jocks. They’re so eager to please, the ribbing can only escalate. But it’s not school popularity they’re working with, its our civil liberties.

        If the Dems know something critical about how bloody effective this extra-constitutional spying has been, they should put that before the electorate. Since the Repubs haven’t done that, odds are pretty heavy it ain’t there. If the Dems are being blackmailed by the GOP, better to fess up; the voters will re-elect most of them and turn out their blackmailers.

        If the Dems are equally beholden to telecoms money – and spurious arguments about voters and jobs (presumably persuasive to someone like Webb in telecom-heavy Virginia) – we should cancel their public employment contracts and elect capable representatives like Donna Edwards in their place. Those jobs will disappear offshore soon enough, as will the local tax base and community investment. Our civil liberties, and holding abusive public officials accountable, are worth more.

  15. Hugh says:

    This was my entry for the IOB from my scandals list. I will have to update but I wanted to point out. That the new EO essentially strangles a dead dog.

    219. Another emasculation of oversight. The Intelligence Oversight Board is a civilian intelligence oversight panel created in the 1970s with the purpose of notifying the President and the Attorney General of intelligence activities which it deems to be illegal. During the first two years of the Bush Administration, the board was vacant. During the first 5 1/2 years (2001-2006), the board made no notifications –this was while the FBI was playing fast and loose with NSLs, the CIA was engaged in torture and black prisons, and the NSA was conducting massive warrantless wiretapping.

  16. Quebecois says:

    I’ve alaways believed that in any abusive relationship, the last one to understand that there is abuse would be the abuser.

    THese folks set out to abuse a country, a system, your constitution knowingly. They’re taking sociopathy to a whole new level. Corruption redifined, need a new word…

  17. PJEvans says:

    How hard will it be to re-route the Potomac through DC?

    Can we hope that the next President will overturn all of Shrub’s EOs and directives, and clean out the stables that Bush has made of so much of the government?

    Or will we have to show up with the garden implements and the patio lights and help clean house?

  18. MrWhy says:

    By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

    1. The President’s the boss.

    2. Anything not compulsory is forbidden, unless I say so.

    3. Anything not forbidden is compulsory, unless I say so.

    4. I can change my mind whenever I want. I can rewrite the rules constitution whenever I want. I can rewrite history whenever I want.

    5. I can change the rules retroactively.

    6. I’m not guilty of anything.

    7. Stop picking on Dana, Condi, Dick, Addington, Mukasey, and everyone else who works for me, or else you’ll be declared an enemy combatant.

    8. It’s all about retroactive immunity for the telcos.

    9. The surge in Iraq is working.

    10. Stop picking on John McCain, or I’ll install my brother Jeb as the 2008 Republican nominee for President of these United States.

    Those are my the new ten commandments.

    11. Stop picking on God. He’s my closest confidante. He’s getting mad at you folks for picking on me, and has promised a new flood if y’all don’t settle down.

  19. bmaz says:

    Regarding the Dem cave on FISA/Immunity, Kevin Drum notes:

    But apparently both sides figured they’d get more mileage out of dragging things out: Republicans got to run their Traitorcrat ads while Democrats got to posture for their liberal base — all the while knowing perfectly well that this deal was almost certainly the eventual end state. Ladies and gentlemen, your Congress at work.”

    Exactly, and just as importantly I imagine is that by stringing this out before rolling over, the Dem Leadersheep kept the question out of play for all the candidates for the entire critical portion of the primary schedule. This will be a hundred tragedies behind by the time the general election rolls around in November. It is all about petty political gamesmanship.

  20. phred says:

    EW, I’ve been out of town, so I’m way late on this thread. But I do find the timing of this new EO really intriguing in light of Cheney’s recent house hunting expedition in Texas. At that time, I wondered whether Hunt was none too pleased with BushCo giving the green light to the Turkish operation against the Kurds in Iraq. And I wondered whether Hunt wanted a word with Cheney to share his displeasure. Now I have no idea whether that scenario has any bearing on reality, but lets pretend that’s what actually happened. And then lets say that Hunt told Cheney in no uncertain terms that Cheney better not jeopardize Hunt’s business interests in Iraq. And then lets say Hunt followed that demand with a threat, along the lines of “I know things from the PFIAB that you don’t want to become public — got it?”. And presto chango a new EO magically appears to minimize the damage that Hunt could inflict from his position on the PFIAB. It is a curiuos coincidence of timing, don’t you think?

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