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House Intelligence bill seeks to constrain PCLOB on covert action

A story in the Washington Post today by Ellen Nakashima looks at a provision in the House Permanent Select Committee on Intelligence (HPSCI) mark of the FY 2016 intelligence authorization bill that would inhibit the Privacy and Civil Liberties Oversight Board (PCLOB) from receiving information that is “related to covert action.” The relevant bill language is as follows:

‘‘(5) LIMITATIONS.—Nothing in this section shall be construed to authorize the Board, or any agent thereof, to gain access to information that an executive branch agency deems related to covert action, as such term is defined in section 503(e) of the National Security Act of 1947 (50 U.S.C. 3093(e)).’’.

Nakashima’s story notes that this provision was drafted in response to a recent opinion piece by PCLOB chairman David Medine, arguing for a new “Drone Board” that would provide independent oversight of the use of UAVs for counterterrorism purposes, and suggesting that the PCLOB could take on this responsibility as an additional duty.

I have mixed feelings about HPSCI’s new legislative proposal. On the one hand, I think that the PCLOB should not be focusing on covert action, given that such a focus would be contrary to the intent of Congress when the PCLOB authorities were established in 2004 and modified in 2007. The policy and legislative debate leading to the PCLOB (including in Chapter 12 of the 9/11 Commission Report) was focused almost exclusively on terrorism-related information sharing and collection issues, and not on counterterrorism operations. It would be outside the scope of the PCLOB’s current authorities for the Board to undertake a direct review of a foreign counterterrorism operations program or activity, whether covert or non-covert.

In addition, there is an existing system in place for the review of covert action programs, as described in this 2013 CRS report. If this system is being utilized appropriately by the executive branch and the Congressional intelligence committees, then creating an additional layer of review by the PCLOB is unnecessary in my opinion, particularly given the longstanding statutory language that a covert action finding “may not authorize any action which violates the Constitution of the United States or any statutes of the United States.”

On the other hand, I worry that this legislative proposal as it is currently drafted would create the basis for executive branch agencies to deny information to the PCLOB that the Board should legitimately be entitled to receive. Note the language in the proposal: “information that an executive branch agency deems related to covert action.” The language gives executive branch agencies an unchecked right to define what information is related to covert action, and the inclusion of the words “related to” creates an opportunity for IC lawyers to try to define this exception broadly.

For example, a covert action may rely on a particular intelligence collection or analytic activity that is within the scope of the PCLOB’s remit. This bill language, as currently drafted, could allow the agency responsible for that collection or analysis activity to deny the PCLOB necessary access to information about this activity, on the basis of its “relation” to the covert action. Such an outcome would undermine the Privacy and Civil Liberties Oversight Board, in a way that is harmful to its clear statutory role as a balancer of privacy and civil liberties concerns within the broader national policy debate on terrorism issues.

The article in the Post notes that this matter will continue to be debated as the bill moves to the floor of the House and is then reconciled with the Senate’s FY 2016 intelligence authorization bill (which has not yet been introduced) later this year. It is also likely that other committees will have a stake in this issue, since the PCLOB’s founding statute is also within the jurisdiction of the Senate and House Judiciary, Senate Homeland Security and Governmental Affairs, and House Oversight committees. I would suggest that an appropriate resolution to this issue would be modifying this provision into “sense of Congress” language that states that the PCLOB should not place a primary, direct focus on covert action programs, but does not impair the Board’s access to information that is within the scope of its current authorities, even if such information is tangentially related to covert action.