Earlier this week, I attended the first public meeting of the Privacy and Civil Liberties Oversight Board (PCLOB), the long-dormant agency created to advise the Executive Branch on liberty issues impacted by U.S. counter-terrorism programs. Established as an entity of the White House in 2004 by the Intelligence Reform and Terrorism Prevention Act (P.L. 108-458) at the recommendation of the 9/11 Commission and reconstituted as an independent agency by Congress in 2007, PCLOB has to this point existed in name alone. But the with the August confirmation of four members of the Board, at long last the Board set to work on its crucial mission.
This week’s meeting offered members of the public the opportunity to provide input to help shape the Board’s near-term agenda. Eight civil liberties organizations submitted statements to urge PCLOB’s focus on a variety of issues related to national security policies and programs. Among the issues raised were several of concern to AALL, including the Foreign Intelligence Surveillance Act (FISA), cybersecurity, state secrets privilege, National Security Letters (NSLs), and the PATRIOT Act (see the 2008 report “Liberty and Security: Recommendations for the Next Administration and Congress”). Thematically, groups expressed a general concern for a reversal of what one meeting participant deemed “the proper flow of information” between the government and the governed; in a democracy, information about government actions should be available to the government’s citizens, while the personal information of those citizens should be off-limits to the government. With greater government secrecy and fewer privacy protections than ever before, that principal has been turned on its head. Attendees urged that PCLOB must be transparent to be effective.
In addition to those concerns named, AALL would urge PCLOB to undertake greater review of classification policy as it pertains to national security and classified programs like Section 215 of the PATRIOT Act. AALL strongly supported President Obama’s Executive Order 13526, which created the National Declassification Center (NDC) in 2009 and which specified a December 31, 2013 deadline for making publicly available the declassified records within the approximately 400 million pages million currently back logged at the National Archives and Records Administration. However, with recent progress reports suggesting that the NDC will not meet its deadline, we again call into question current security requirements that trend towards over-classification and excessive compartmentalization of information among agencies. Unlike the Public Interest Declassification Board, PCLOB is authorized to have access to all relevant information necessary to fulfill its role– including classified information– giving PCLOB the opportunity to take a deeper and more substantive look at classified programs. We believe greater scrutiny of classified programs and the policy by which they remain classified fits well within the mission of the Board.
We commend PCLOB on its first meeting and look forward to seeing what priorities the group will set. Though the board remains without a chair— the Senate Judiciary Committee approved President Obama’s nominee, David Medine, in May, but the full Senate has not considered the request— we’re hopeful for future progress.