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The “Oversight” over NCTC’s Not-Terrorist-Terrorist Database

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Back when John Negroponte appointed him to be the Director of National Intelligence’s Civil Liberties Protection Officer, Alexander Joel admitted he had no problem with Cheney’s illegal domestic wiretap program.

When the NSA wiretapping program began, Mr. Joel wasn’t working for the intelligence office, but he says he has reviewed it and finds no problems. The classified nature of the agency’s surveillance work makes it difficult to discuss, but he suggests that fears about what the government might be doing are overblown.

“Although you might have concerns about what might potentially be going on, those potentials are not actually being realized and if you could see what was going on, you would be reassured just like everyone else,” he says.

That should trouble you, because he’s the cornerstone of oversight over the National Counterterrorism Center’s expanded ability to obtain and do pattern analysis on US person data.

The Guidelines describe such oversight to include the following:

  • Periodic spot checks overseen by CLPO to make sure database use complies with Terms and Conditions
  • Periodic reviews to determine whether ongoing use of US person data “remains appropriate”
  • Reporting (the Guidelines don’t say by whom) of any “significant failure” to comply with guidelines; such reports go to the Director of NCTC, the ODNI General Counsel, the CLPO, DOJ (it doesn’t say whom at DOJ), and the IC Inspector General; note, the Guidelines don’t require reporting to the Intelligence Oversight Board, which should get notice of significant failures
  • Annual reports from the Director of NCTC on an (admittedly worthwhile) range of metrics on performance to the Guidelines; this report goes to the CLPO, ODNI General Counsel, the IC IG, and–if she requests it–the Assistant Attorney General for National Security

There are a few reasons to be skeptical of this. First, rather than replicate the audits recently mandated under the PATRIOT Act–in which the DOJ Inspector General develops the metrics, these Guidelines have NCTC develop the metrics themselves. And they’re designed to go to the CLPO, who officially reports to the NCTC head, rather than an IG with some independence.

That is, to a large extent, this oversight consists of NCTC reporting to itself.

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Two of Obama’s Independent Intelligence Advisors Have Supported Oversight in Past; Why Not Now?

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I’ve written recently about Obama’s refusal to appoint anyone to the Privacy and Civil Liberties Oversight Board, which is supposed to ensure the government protects privacy while laying out a dragnet to catch terrorists, most recently when Thomas Kean and Lee Hamilton issued their 10-year report card on the 9/11 Commission’s recommendations. And I wrote about Bush’s efforts to bypass the intelligence oversight that is supposed to be exercised by the Intelligence Oversight Board by simply eliminating the part of the Presidential Foreign Intelligence Advisory Board that did that oversight, the IOB.

But it seems Obama has ensured–as he has with PCLOB–that IOB can’t do its job. Or at least that’s the appearance from the government’s stone-walling on information about the board.

The Electronic Frontier Foundation has been trying to see whether Obama has fulfilled his promise to restore the IOB to functionality by FOIAing who is on it and what they’ve been doing (and whether they’ve been ignoring the National Security Letters the Army has been sending out).Thus far, the government has denied their FOIA.

The IOB is supposed to alert the president and attorney general when it spots behavior that is unlawful or contrary to executive order. However, in his nearly three years in office, President Obama has not yet announced any appointments to the IOB. EFF’s suit comes after the ODNI refused to respond to a Freedom of Information Act (FOIA) request for membership, vacancies, and other information about the IOB made earlier this year.

“The IOB has a critically important mission – civilian oversight of America’s intelligence activities. The board exists to make sure government agencies are not overstepping their authority and abusing citizens’ rights,” said EFF Open Government Legal Fellow Mark Rumold. “History has shown that intelligence agencies overseeing their own behavior is like the fox guarding the henhouse. If the IOB is ineffective, impaired, or short-staffed, that’s information Americans need to know.”

So now they’re suing to get that information.

But there’s something else weird about Obama’s stone-walling here. Here’s the list of people Obama has appointed to the President’s Intelligence Advisory Board, the board that oversees the IOB.

  • Chuck Hagel (10/28/2009)
  • David Boren (10/28/2009)
  • Roel Campos (12/23/2009)
  • Lee Hamilton (12/23/2009)
  • Rita Hauser (12/23/2009)
  • Paul Kaminski (12/23/2009)
  • Ellen Laipson (12/23/2009)
  • Les Lyles (12/23/2009)
  • Jami Miscik (12/23/2009)
  • Richard Danzig (12/1/2010)
  • Daniel Meltzer (12/1/2010)
  • Thomas Wheeler (4/17/2011)
  • Mona Sutphen (9/6/2011)
  • Phillip Zelikow (9/6/2011)

You know, Lee Hamilton, the 9/11 Commission Chair who just weeks ago was nagging the Administration that, “there should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.” And Phillip Zelikow, who wasn’t involved in the anniversary nagging, but who was involved in the original recommendation? (FWIW, Chuck Hagel voted for PCLOB as part of the larger counterterrorism reform package of which it was a part.)

These men obviously think (or at least used to think) our intelligence community needs some oversight. I realize PCLOB isn’t the same thing as IOB (as originally conceived and even as statutorily defined PCLOB was supposed to be stronger in some ways than IOB, though it was targeted at privacy, not intelligence violations). So why not push for oversight designated to be a part of the board on which they serve?

Seven years ago, Hamilton and Zelikow signed off on the this language:

[W]hile protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties. This balancing is no easy task, but we must constantly strive to keep it right.

This shift of power and authority to the government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.

Right now, even as Hamilton and Zelikow serve as Obama’s handpicked independent intelligence advisors, the checks and balances on our intelligence system are actually worse than when they signed off on those words. They may not be able to do anything about EFF’s FOIA to learn what has become of the IOB. But it’d be nice if they used their advisory position to implement checks and balances more generally on the intelligence community.

10 Years Later, 9/11 Commission Says President Is Failing to Protect Civil Liberties

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The 9/11 Commission released a 10-year report card on the recommendations they made back in 2004. And one of three recommendations that remains entirely unfulfilled–the only one that is entirely the responsibility of the executive branch–is implementing a board to defend civil liberties.

“[T]here should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.”

An array of security-related policies and programs present significant privacy and civil liberty concerns. In particular, as the FBI and the rest of the intelligence community have dramatically expanded their surveillance of potential terrorists, they have used tools such as National Security Letters that may implicate the privacy of Americans. Privacy protections are also important in cyber security where the government must work with the private sector to prevent attacks that could disrupt information technology systems and critical infrastructure. The same Internet that contains private correspondence and personal information can also be used as a conduit for devastating cyber attacks.

To ensure that privacy and liberty concerns are addressed, the 9/11 Commission recommended creating a Privacy and Civil Liberties Oversight Board to monitor actions across the government. Congress and the president enacted legislation to establish this Board but it has, in fact, been dormant for more than three years.

Describing the PCLOB as “dormant” is actually a huge favor to Obama. It only suggests, but does not make explicit, that before the end of his Administration Bush actually got around to rolling out the PCLOB–evenven if it was so compromised by executive branch control that Lanny Davis felt obliged to resign.

But Obama has avoided even that much oversight by simply letting the PCLOB go unfilled for his entire Presidency. As the report card explains, Obama finally got around to making nominations after Democrats lost the numbers in the Senate to approve his nominees (though one was the Michael Mukasey Assistant Attorney General who rolled out greater investigative powers for the FBI). And even if those two were by some freakish even confirmed, PCLOB would still be short a quorum to do any work.

The Obama administration recently nominated two members for the Board, but they have not yet been confirmed by the Senate. We take the administration at its word that this Board is important: in its May 2009 review of cyber security policy, the administration noted the Board’s importance for evaluating cyber security policies. We urge the president to appoint individuals for the remaining three positions on the board, including the chairman, immediately, and for the Senate to evaluate their nominations expeditiously.

[snip]

If we were issuing grades, the implementation of this recommendation would receive a failing mark. A robust and visible Board can help reassure Americans that these programs are designed and executed with the preservation of our core values in mind. Board review can also give national security officials an extra degree of assurance that their efforts will not be perceived later as violating civil liberties.

PCLOB is an entity mandated by law. But the President refuses to comply with that law to provide for some oversight over civil liberties, no matter how inadequate.

It’s not me accusing Obama of failure on this point–it’s a bipartisan commission primarily concerned with the national security of the country. But they are, in fact, calling him a failure.