Independent Privacy and Civil Liberties Oversight Board Schedules Meeting on PRISM Surveillance Scandal

June 13th, 2013 | Posted by Jim Cook in Barack Obama | Homeland Insecurity | Liberty | Politics - (1 Comments)

If you care about warrantless surveillance by the United States Government, it’s worth periodically checking this Federal Register page to find out what the long-overdue, finally-formed Privacy and Civil Liberties Oversight Board is up to. By law, the PCLOB has independent power unsquelchable by Congress or the President to subpoena classified or unclassified information regarding possible abuses of Americans’ civil liberties by the United States government. Even better, the PCLOB has a mandate to publish twice-yearly reports that are available to the public.

Given that independent power, it’s no wonder Barack Obama stalled the board’s formation for four and a half years, but now that the board is finally in place it has announced its first all-member meeting, Wednesday June 19. The announcement reads:

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

[Notice-PCLOB-2013-03; Docket No 2013-0004; Sequence No. 3]
Sunshine Act Meeting

TIME AND DATE: 1:00 p.m. – 3:00 p.m. on Wednesday, June 19, 2013.
PLACE: The meeting will be held at 2100 K Street, NW, Washington, D.C. 20427.
STATUS: Closed.

MATTERS TO BE CONSIDERED:
The Privacy and Civil Liberties Oversight Board will meet in closed session to discuss classified information pertaining to the PRISM-related activities and the Foreign Intelligence Surveillance Act.

The Government in the Sunshine Act, 5 U.S.C. § 552b, normally requires that agencies provide at least one week prior notice to the public of the time, date, and location of meetings. As permitted by section 552b(e)(1), the Board determined, by recorded vote, that agency business requires that this meeting be called at an earlier date.

CONTACT PERSON FOR MORE INFORMATION: Susan Reingold, Chief Administrative Officer, 202-331-1986.

Dated: June 12, 2013.
Claire McKenna,
Legal Counsel [FR Doc. 2013-14431 Filed 06/13/2013 at 11:15 am; Publication Date: 06/17/2013]

PRISM? They’ve got a lot to talk about. Do you think 2 hours will cover it?

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At a time of great need, has the Privacy and Civil Liberties Oversight Board neutered itself?

June 10th, 2013 | Posted by Jim Cook in Barack Obama | Homeland Insecurity | Liberty | Politics - (0 Comments)

The Supreme Court just ruled that police can collect the DNA of people who are never charged with a crime.

The actions of your government in seizing the phone records of all Americans have just been exposed.

The same government has been sweeping up wide swaths of data on the activities of innocent people from the servers of Google, Microsoft, Apple, Yahoo, Facebook, YouTube, Skype and AOL.

All this in the month after the Privacy and Civil Liberties Oversight Board was finally activated after more than half a decade of delay. Under the Implementing Recommendations of the 9/11 Commission Act of 2007 Section 801, the Privacy and Civil Liberties Oversight Board is directed by law to:

  • “Analyze and review actions the executive branch takes… ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties”.
  • “Ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies”.
  • “Review proposed legislation, regulations, and policies related to efforts to protect the Nation from terrorism,”
  • “Review the implementation of new and existing legislation, regulations, and policies related to efforts to protect the Nation from terrorism,”
  • “Advise the President and the departments, agencies, and elements of the executive branch to ensure that privacy and civil liberties are appropriately considered in the development and implementation of such legislation, regulations, policies, and guidelines,”
  • “Receive and review reports and other information from privacy officers and civil liberties officers under section 1062; when appropriate, make recommendations to such privacy officers and civil liberties officers regarding their activities; and when appropriate, coordinate the activities of such privacy officers and civil liberties officers on relevant interagency matters.”
  • “Periodically submit, not less than semiannually, reports—
    1. to the appropriate committees of Congress, including the Committee on the Judiciary of the Senate, the Committee on the Judiciary of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Homeland Security of the House of Representatives, the Committee on Oversight and Government Reform of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives; and
    2. to the President; and
    3. which shall be in unclassified form to the greatest extent possible,”
  • “Not less than 2 reports submitted each year under paragraph (1)(B) shall include a description of the major activities of the Board during the preceding period; information on the findings, conclusions, and recommendations of the Board resulting from its advice and oversight functions under subsection (d); the minority views on any findings, conclusions, and recommendations of the Board resulting from its advice and oversight functions under subsection (d); each proposal reviewed by the Board under subsection (d)(1) that the Board advised against implementation; and notwithstanding such advice, actions were taken to implement; and for the preceding period, any requests submitted under subsection (g)(1)(D) for the issuance of subpoenas that were modified or denied by the Attorney General.”
  • “INFORMING THE PUBLIC. The Board shall make its reports, including its reports to Congress, available to the public to the greatest extent that is consistent with the protection of classified information and applicable law; and hold public hearings and otherwise inform the public of its activities, as appropriate and in a manner consistent with the protection of classified information and applicable law.”

If the Privacy and Civil Liberties Oversight Board had actually carried out these activities — if President Barack Obama had not blocked its creation during the years of 2009, 2010, 2011, and 2012 — then the liberties of the American people would have had effective representative in government (did I mention that under law the PCLOB has complete subpoena power for any member of the executive branch?).

Unfortunately, the formation of the Privacy and Civil Liberties Oversight Board was stymied by the Obama administration for four straight years. That history cannot be changed. Fortunately, as of last month a Chairman of the Privacy and Civil Liberties Oversight Board was finally confirmed and so the Board can finally begin to act.

The question is, will the Board act?

In its only substantive action since its activation last month, the Privacy and Civil Liberties Oversight Board last week published a rule in the Federal Register that asserts its powers and duties. The rule describes the PCLOB’s functions as follows:

(a) The Board provides advice and counsel to the President and executive departments and agencies to ensure that privacy and civil liberties are appropriately considered in proposed legislation, regulations, and policies, and in the implementation of new and existing legislation, regulations, and policies, related to efforts to protect the Nation from terrorism;
(b) The Board oversees actions by the executive branch relating to efforts to protect the Nation from terrorism to determine whether such actions appropriately protect privacy and civil liberties and are consistent with governing laws, regulations, and policies regarding privacy and civil liberties; and
(c) The Board receives and reviews reports and other information from privacy and civil liberties officers under 42 U.S.C. 2000ee-1 and, when appropriate, makes recommendations to and coordinates the activities of privacy and civil liberties officers on relevant interagency matters.

That’s it. What’s missing from the functions described in the PCLOB’s self-written rule?

Reports to Congress are missing.
Reports to the public are missing.

Of course, these reports have been missing for years. With 2013 half gone, there are 9 semi-annual reports of the Privacy and Civil Liberties Oversight Board that should have been issued but have not been issued by the Obama administration.

Is this omission by the Privacy and Civil Liberties Oversight Board simply an oversight of a function so obvious that it need not be stated? Or does the PCLOB intend to continue the lack of civil liberties reports so far under the administration of Barack Obama?

Wait, watch this space in the Federal Register and see.

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How to Track the (Inactive) Privacy and Civil Liberties Oversight Board

January 2nd, 2013 | Posted by Jim Cook in Barack Obama | Homeland Insecurity | Liberty | Politics - (1 Comments)

The end of the 112th Congress also marks the closing of opportunities in Barack Obama’s first term as president for a vigorous, robust and active Privacy and Civil Liberties Oversight Board. For his first three years in office, despite federal law, President Barack Obama refused to nominate any members to sit on a Privacy and Civil Liberties Oversight Board — a board which if it had existed would have had the right and the duty to subpoena classified information and testimony from across the U.S. Government in order to uncover and report on violations of our civil liberties by that same U.S. Government. Because President Barack Obama blocked the seating of any members for three years, that civil liberty watchdog function went unmet. In the last year of his fourth term, Barack Obama finally nominated members to sit on the board — but a majority of those nominated members were corporate lobbyists and defenders of government prerogative. In a last blow to the Privacy and Civil Liberties Oversight Board, Congress refused to confirm a chair for the board, which means that the board can’t hire any staff to support its activities.

As we mark the beginning of Barack Obama’s second term in office this month, we don’t see any indicators of a change in trajectory for the Privacy and Civil Liberties Oversight Board. White House statements reveal no new nomination of a chair for the board, and although board member Patricia Wald’s term on the Board is set to expire at the end of January 2013, there is no indication of any nomination to replace her. Although the Privacy and Civil Liberties Oversight Board exists as an independent entity within the White House, the White House has made no room for it on its website.

As we move forward into another lackluster year for the Privacy and Civil Liberties Oversight Board, one small improvement can be noted. On October 30 2012, the Privacy and Civil Liberties Oversight Board held its first public meeting in Washington, DC “for the purpose of receiving the public’s input on its forthcoming agenda. In anticipation of setting the agenda of issues on which the Board will focus its attention, the Board would welcome the views of nongovernmental organizations and members of the public.” That’s a positive note, as far as it goes. Unfortunately, the notice of this meeting was only published in the Federal Register on Tuesday October 23, one week in advance, and in order to participate in the meeting, individuals and groups had to submit a written request by Friday October 26. No professional journalists shared this news with the public. The result was predictable: as the Brennan Center put it, “Most of the attendees knew one another and knew most of the Board members, and the small meeting had an informal and collegial feel.” No populist meeting, this. No audio, video or text transcript record of the meeting has been made publicly available.

If this first and only action by the Privacy and Civil Liberties Oversight Board is indicative, then moving into the future, anyone who wants to have any input into the Board’s activities will have to be a habitual reader of the Federal Register, quick to respond in writing, and either a resident of the Washington, DC area or willing to travel there on a moment’s notice.

Well, that’s better than nothing. Let’s you and me work together on this. Any future Federal Register notifications regarding the Privacy and Civil Liberties Oversight Board will be posted here. I’ll share what I know as soon as I know it. Will you do the same?

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S. 2929 … What do Feingold and Whitehouse Know About Secret Executive Orders?

March 2nd, 2010 | Posted by Jim Cook in Barack Obama | George W. Bush | Homeland Insecurity | Legislation | Liberty | Mysteries | Politics | Questions - (1 Comments)

The Executive Order Integrity Act, S. 2929, isn’t the sort of bill that a member of Congress just up and decides to write on the spur of the moment. The bill, sponsored by Senator Russell Feingold and cosponsored by Senator Sheldon Whitehouse, requires the president to make formal notifications of executive orders and changes to executive orders — to the public through the Federal Register if the subject is unclassified and to security-cleared congressional committees if the subject is classified. Executive orders are directives with the status of semi-law issued by a President to instigate a course of action, and the more power a president has, the more important executive orders become.

A bill regulating the transparency of their modification is a very specific piece of legislation responding to a very specific problem in government. The conditions under which Feingold and Whitehouse originally introduced the Executive Order Integrity Act in the 110th Congress are well-known: George W. Bush had been caught issuing, revoking and changing around multiple executive orders granting himself and his administration multiple new powers. The only way that Americans found out about these executive orders was through investigative journalism and the occasional leak.

With the election of Barack Obama as President, President George W. Bush became an ex-president and no longer needed to be reined in. Apart from hyperbolic conservative Christian declarations of “secret Obama executive orders” at the beginning of his administration that … um, were published in the federal register … what secret executive order problem has there been in the Obama administration?

Well, Senators Feingold and Whitehouse seemed to agree with that sentiment, refraining from reintroducing their legislation with a new 111th Congress and a new Obama administration. But that sentiment changed last December, when the pair decided it was time to bring their bill back from the dead for fresh consideration.

What prompted Feingold’s and Whitehouse’s change of heart? There’s a lot that could. The two senators are placed on both the Senate Judiciary Committee, which has jurisdiction over constitutional matters, and the Intelligence Committee, which deals with all the secret shenanigans we citizen people aren’t to be told.

I don’t know what prompted the reintroduction of S. 2929, and the overwhelming conservative chatter about more recent “secret executive orders” by Obama that were actually made quite public really isn’t helpful as I to figure this out.

The offices of Senators Feingold and Whitehouse are mum about why S. 2929 needs to be reintroduced under the Obama administration. If you know something about the bill’s context pertaining to our new president, don’t be secretive. Let us know.

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