Civil liberties advocates in both parties are sounding alarms about a Republican attempt to kneecap a small federal privacy watchdog.
A one-sentence provision tucked into an annual intelligence policy bill making its way through the House could hobble the Privacy and Civil Liberties Oversight Board (PCLOB), critics fear.
The measure is “way beyond troubling,” said Patrick Eddington, a policy analyst at the libertarian Cato Institute who formerly worked for ex-Rep. Rush Holt (D-N.J.) and spent eight years at the CIA.
“Anything that any member of Congress is proposing to do that would limit what the PCLOB is doing is a mistake, because our problem isn’t too much information about whether or not these NSA [National Security Agency] and other related programs are out there — our problem is we don’t have nearly enough,” he added.
The House’s Intelligence Authorization Act has attracted criticism for its prohibitions on transferring detainees out of Guantanamo Bay and its attempts to skirt congressional budget caps — both of which flame longstanding partisan debates.
But the restriction on the privacy board amounts to the first shot in a new battle for Capitol Hill.
Though small, the five-member PCLOB has had an outsized impact on recent congressional battles of surveillance law.
Civil liberties backers repeatedly pointed to its determination last year that the NSA’s bulk collection of Americans’ phone records was illegal. Last week, President Obama signed legislation ending that program.
A small provision in the new House intelligence policy bill would prevent the PCLOB from gaining “access to information that an executive branch agency deems related to covert action.”
Intelligence Committee Chairman Devin Nunes (R-Calif.), who supports the provision, said that it was necessary to protect secret information about classified operations.
“As part of its statutory charter, the Board operates publicly and issues public reports,” Nunes said in a statement to The Hill. “Covert action, by its very definition, is an activity that the United States cannot and should not acknowledge publicly.
“Review of such activity is ill-suited for a public board like the PCLOB, and such reviews are already conducted by numerous other parts of the government, including the executive branch and Congress,” he added.
The effects could be sweeping, critics say.
“The impact on their ability to conduct actual oversight is actually breathtaking,” said Rita Siemion, senior counsel at the Constitution Project, a bipartisan think tank.
Covert action “can cover a wide range of activities that PCLOB is meant to oversee,” she added. “They’re supposed to be looking at our counterterrorism policies and practices, and you can imagine that much of that activity would of course be covert.”
The board is currently in the midst of a months-long analysis of an executive order that dates back to the Reagan administration. Executive Order 12333 undergirds the “majority” of the NSA’s activities, it said in a formerly top secret NSA legal fact sheet.
“We want to make sure they don’t try to interpret their mandate on that in an overly broad way and claim the authority to review covert actions,” a congressional aide told The Hill. “The main issue is that the existence of covert actions cannot even be acknowledged, which poses major problems when such actions fall under the jurisdiction of an open board like PCLOB.”
The provision also would likely prevent the board from expanding into new areas, such as the Obama administration’s reliance on drones to carry out a targeted killing campaign.
While much of that program is still shrouded in secrecy, board Chairman David Medine has suggested that his agency be authorized to conduct a review of the killings, especially in light of recent revelations that a strike earlier this year mistakenly killed an Italian and an American citizen held hostage by al Qaeda.
“A Drone Board would be an important step to provide additional process and greater public confidence in the method of targeting U.S. citizens overseas,” Medine wrote in Defense One in April.
The new restrictions would likely stop that effort even before it got off the ground.
The executive director of the PCLOB, Sharon Bradford Franklin, declined to comment about the new legislation.
The Intelligence Committee unanimously approved the bill on a voice vote earlier this month, but not before rejecting an amendment from Rep. Jim Himes (D-Conn.) attempting to kill the provision. At the time, Democrats on the Intelligence Committee said that the measure “unduly restricts” the privacy board.
Democrats and Republicans alike have attempted to offer three more amendments to kill the provision, but it remains unclear whether or not any of those will be allowed to get a vote on the House floor.
The Rules Committee was originally scheduled to debate what amendments would be allowed on Wednesday, but that session was delayed to allow time for lawmakers to work on “fast-track” trade legislation. The bill now seems set to head to the floor next week.
One of the measures came from Rep. Tulsi GabbardTulsi GabbardThe perfect Democratic running mate for DeSantis? Progressives breathe sigh of relief after Afghan withdrawal Hillicon Valley: US has made progress on cyber but more needed, report says | Democrat urges changes for 'problematic' crypto language in infrastructure bill | Facebook may be forced to unwind Giphy acquisition MORE (D-Hawaii), who filed along with Himes as well as with Rep. David SchweikertDavid SchweikertDemocrat says 'temporary' inflation will have lasting impact on small businesses Lawmakers spend more on personal security in wake of insurrection We must address the declining rate of startup business launches MORE (R-Ariz.) Gabbard has also introduced legislation to expand the purview of the PCLOB, along with Rep. Trey GowdyTrey GowdyTrey Gowdy sets goal of avoiding ideological echo chamber with Fox News show Fox News signs Trey Gowdy, Dan Bongino for new shows Pompeo rebukes Biden's new foreign policy MORE (R-S.C.).
“Any time you’re handicapping the ability to have oversight, I think there is reason for concern,” Gabbard told The Hill on Wednesday.
“You’re limiting oversight, not expanding it.”