March 3, 2008
|A new White House executive order splits the watchdog duties of the Intelligence Oversight Board, a five-member panel of private citizens, with National Intelligence Director Mike McConnell. Rather than intelligence agencies reporting their activities to the board for review, they will now report them to McConnell.|
On Friday afternoon the White House posted without fanfare a new Executive Order that revamps an important though little known intelligence board. There are a few minor changes, but the most radical revision appears to be that the board has now been stripped of nearly all its powers to investigate and check illegal intelligence activities. It’s difficult to see what legitimate reasons there could have been for gutting the oversight activities of the board in this way, and the WH has not explained the changes.
And perhaps not coincidentally, the board has been renamed. Under the older Executive Order from 1993, it was called the President’s Foreign Intelligence Advisory Board (PFIAB). Now it has been renamed the President’s Intelligence Advisory Board (PIAB), suggesting perhaps that the Bush administration had domestic intelligence activities in mind while making these revisions.
PFIAB is tasked with a range of things, but particularly with assessing "the quality, quantity, and adequacy of intelligence collection, of analysis and estimates, and of counterintelligence and other intelligence activities"; and with reviewing the performance of intelligence agencies. Board members are meant to bring an independent point of view to bear on intelligence activities; they cannot be employees of the federal government. This excellent post from 2006 by georgia10 has essential background on the board.
PFIAB members get unprecedented access to our nation’s most closely gaurded secrets. They have, according to Salon, "access to intelligence that is unavailable to most members of Congress. They are privy to intelligence from the Central Intelligence Agency, the National Security Agency, the military intelligence agencies and others." …
The historical role of the PFIAB cannot be underscored enough. It has the ability to look into the most controversial aspects of our intelligence. For example, after the flurry of controversy about the 16 words in Bush’s SOTU speech, it was the PFIAB that was the first government body to conclude the claim was "questionable"–though it did blame the insertion on the lack of "an organized system at the White House to vet intelligence."
Georgia also highlighted how, over the course of his presidency, Bush had stacked the PFIAB increasingly with cronies and utter hacks – many of whom were in no way capable of assessing intelligence activities or reviewing agencies. In other words, Bush clearly had little interest in using the Board as intended, to serve as an independent check upon the country’s intelligence services.
And now Bush has remade PFIAB/PIAB in such a way as to take away the very means the Board used to possess to check out-of-control intelligence activities.
There is a powerful and critical standing committee within PFIAB, the Intelligence Oversight Board (IOB). It was created in 1976 after the exposure of widespread intelligence abuses. IOB’s purpose was to act as a check upon illegal intelligence activities. The most radical changes in the new Executive Order concern the IOB, which Bush has stripped of important powers and duties.
Here from the 1993 Executive Order are the relevant powers and duties of the IOB, which were in effect until Friday. I have put in bold several notable clauses.
Sec. 2.2. The Iob shall:
(a) prepare for the President reports of intelligence activities that the Iob believes may be unlawful or contrary to Executive order or Presidential directive;
(b) forward to the Attorney General reports received concerning intelligence activities that the Iob believes may be unlawful or contrary to Executive order or Presidential directive;
(c) review the internal guidelines of each agency within the Intelligence Community that concern the lawfulness of intelligence activities;
(d) review the practices and procedures of the Inspectors General and General Counsel of the Intelligence Community for discovering and reporting intelligence activities that may be unlawful or contrary to Executive order or Presidential directive; and
(e) conduct such investigations as the Iob deems necessary to carry out its functions under this order.
Now compare the IOB’s powers and duties under Bush’s new Executive Order. You’ll note that nearly all the foregoing powers and duties are gone, and with them, any real chance of independence of action.
Sec. 6. Functions of the IOB. Consistent with the policy set forth in section 1 of this order, the IOB shall:
(a) issue criteria on the thresholds for reporting matters to the IOB, to the extent consistent with section 1.7(d) of Executive Order 12333 or the corresponding provision of any successor order;
(b) inform the President of intelligence activities that the IOB believes:
(i)(A) may be unlawful or contrary to Executive Order or presidential directive; and
(B) are not being adequately addressed by the Attorney General, the DNI, or the head of the department concerned; or
(ii) should be immediately reported to the President.
(c) review and assess the effectiveness, efficiency, and sufficiency of the processes by which the DNI and the heads of departments concerned perform their respective functions under this order and report thereon as necessary, together with any recommendations, to the President and, as appropriate, the DNI and the head of the department concerned;
(d) receive and review information submitted by the DNI under subsection 7(c) of this order and make recommendations thereon, including for any needed corrective action, with respect to such information, and the intelligence activities to which the information relates, as necessary, but not less than twice each year, to the President, the DNI, and the head of the department concerned; and
(e) conduct, or request that the DNI or the head of the department concerned, as appropriate, carry out and report to the IOB the results of, investigations of intelligence activities that the IOB determines are necessary to enable the IOB to carry out its functions under this order.
The newly revised IOB is much more passive. Gone is the duty to review agency guidelines regarding illegal intelligence activities. Gone is the duty to hold accountable the intelligence watchdog offices, such as inspectors general, who are supposed to serve as a bulwark against illegal activities.
Gone is the duty ("shall…forward") to take illegal activities directly to the Attorney General. That was a core function of the IOB originally. As before, the IOB can still report any illegality to the president – who may however have had a hand in the law-breaking. Indeed the IOB is discouraged from doing even that much if the lawlessness already seems to be getting "addressed" by some agency head or the DNI. The new rules seem to envisage at least in some cases that illegal activities identified by IOB can be remedied with bureaucratic fixes without notifying the Justice Department.
Gone too, for the most part, are independent investigations. What’s left is mainly the duty to review and respond to the reports sent back to IOB by the DNI, who now acts as an intermediary for any complaints that IOB may make about illegal intelligence activities. IOB’s recommendations have to be laundered through the DNI henceforth. As described in section 7 of the new Executive Order, the DNI may act upon IOB’s recommendations to correct illegal activities, or even report the activities to the Attorney General, as appropriate. But the IOB is essentially dependent upon the DNI. It cannot effect any change or expose any crimes against the wishes of the DNI (or President).
As the AP report emphasizes, Bush’s Executive Order transfers many of IOB’s former powers and responsibilities directly to the DNI.
A new White House executive order splits the watchdog duties of the Intelligence Oversight Board, a five-member panel of private citizens, with National Intelligence Director Mike McConnell. Rather than intelligence agencies reporting their activities to the board for review, they will now report them to McConnell…
Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, an advocacy group, said the move appears to dilute the independent board’s investigatory powers in favor of a member of the president’s administration.
"It makes the new board subordinate to the (national intelligence director) in a way that the old board was not subordinate to the director of central intelligence," he said.
In short, the IOB has been hollowed out and lost any real ability to act independently to uncover, thwart, expose, or punish illegal intelligence activities.
To return, then, to the name change. It could be that the hollowing out of the IOB’s powers is related to the fact that the PFIAB, now PIAB, has lost the term "Foreign" in its name. The Bush administration is engaged in an epic struggle with Congress to keep its illegal domestic intelligence activities secret. That is what the battle over the FISA bill is all about. The last thing Bush, Cheney, and Addington would wish to do would be to leave the IOB in a position to start investigating or exposing that illegality – now, or in a future administration.
It’s worth noting that an anonymous WH official has offered to the Associated Press a preposterous explanation for the new Executive Order. It is, the official claims, all about forcing the intelligence agencies to work with DNI Mike McConnell. And how does that explain the stripping away of IOB’s duty to report illegal activities directly to the Attorney General? No, the WH spin is meant to distract from, rather than explain, that very fact.
This is yet another major intelligence reform of the post-Nixon era that the Bush administration has undermined.