The Privacy and Civil Liberties Oversight Board (PCLOB) has issued its long-awaited “capstone report” on Executive Order 12333, which was six years in the making. All I can say is: what a colossal disappointment. 1/18…
PCLOB can create value in two main ways: (1) by disclosing information about counterterrorism programs/practices that wasn’t previously public, and (2) by assessing the civil liberties implications of CT programs/practice and making recommendations. 2/18
PBLOB’s 2014 reports on the NSA’s bulk collection of Americans’ phone records (the “Section 215 report”) and on Section 702 surveillance served both functions. The EO 12333 “capstone” report serves neither. 3/18
The Section 215 and Section 702 reports were 234 and 191 pages, respectively. PCLOB was able to obtain the declassification of a wealth of information, making these reports critical resources to understand how those legal authorities were being implemented in practice. 4/18
The EO 12333 report is... 20 pages. As far as I can tell, it includes no information that cannot already be found in public sources. Indeed, most of the discussion of the executive order simply restates what is in the order itself. 5/18
The report is perhaps more user-friendly than the EO and agency guidelines themselves. But a Reader’s Digest version of existing legal resources is hardly what we should expect after a 6-year investigation by the government's primary civil liberties watchdog. 6/18
PCLOB would probably respond that all information about the actual implementation of EO 12333 is classified. Of course, that was also true for much of the government’s implementation of Section 702… 7/18
…until PCLOB worked with the intelligence agencies to get a significant amount of information declassified. 8/18
It’s not clear whether PCLOB attempted a similar process here. If so, and if intelligence agencies simply failed to cooperate, that fact should be highlighted in the report. Part of responsible oversight is raising the alarm when agencies are overly secretive. 9/18
(I’m sure there are details about the operation of EO 12333 that cannot safely be made public. I’m equally sure that there is *some* information about its operation, beyond what any of us can learn simply by reading the order, that *can* be disclosed.) 10/18
Even if it couldn’t tell us anything new, PCLOB could have expressed some opinion about the civil liberties implications of EO 12333. The Section 215/702 reports evaluated the programs’ civil liberties impacts and included lists of concrete recommendations for reform. 11/18
The EO 12333 report does not even purport to assess the civil liberties implications of EO 12333 surveillance. Its only recommendation is for intelligence agencies to be sure to keep their operational guidance and legal analysis updated. 12/18
In addition to the public report, PCLOB conducted three classified “deep dives” into specific EO 12333 programs. As part of these reviews, PCLOB states, it assessed civil liberties impacts and provided recommendations to improve privacy and civil liberties. 13/18
Perhaps these deep dives were detailed and exhaustive, the level of inquiry rigorous, the recommendations thoughtful and appropriate. Perhaps PCLOB simply gave up on being able to produce a useful public report, and put all its effort into the classified investigations. 14/18
That very well might be the case, and I hope it is. But it’s hard to have confidence when the public report is so lacking in any useful content. That’s all we have to go on, and it frankly feels like it was phoned in. 15/18
Moreover, PCLOB serves the American people, not just government agencies. I would argue that its job, in the public report, was to make as much information public as it possibly could (including through negotiating the declassification of information);… 16/18
…to identify any civil liberties concerns that arise with the executive order as a whole and the Attorney General-approved guidelines; and to provide recommendations for any needed reforms to these authorities. 17/18
That didn’t happen, and I’m not sure why. What PCLOB produced instead is a document that serves as a handy cheat-sheet for people who aren’t already familiar with EO 12333 or FISA, but doesn’t reflect “oversight” in any meaningful sense of the word. 18/18

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More from @LizaGoitein

3 Apr
This statement by two PCLOB members suggests that PCLOB decided to abandon its original plan to conduct oversight of EO 12333 apart from its three "deep dives." In other words, they're not pretending the April 2 report constitutes EO 12333 oversight. 1/5…
I suppose it's good that they recognize that. But why did only two members join this statement? The report itself should clearly state that PCLOB decided against pursuing a general EO 12333 oversight project, and the report is intended merely as an explainer for laypersons. 2/5
Moreover, PCLOB apparently concluded that a "very broad oversight review" of EO 12333 would be too resource-intensive. That might be true. But there are certainly discrete questions PCLOB could have explored (and still could!) that would produce enormous value... 3/5
Read 5 tweets
20 Jan
One of President Biden’s Day One executive orders terminates the national emergency declaration Trump used to circumvent Congress and divert military construction funds to build the border wall. 1/6
The declaration was a shameful abuse of power on many levels. It cited a fake emergency to sidestep Congress’s constitutional authority for the purpose of implementing a racist policy. 2/6
Terminating the emergency is step one. Step two is for President Biden to work with Congress to ensure that no future president can do what Trump did. Because Trump will not be the last president to succumb to the temptation of emergency powers. 3/6
Read 6 tweets
4 Sep 20
ODNI just released a FISA Court opinion from Dec. 2019 approving Section 702 collection for another year. The opinion reveals multiple violations by the FBI, NSA, and CIA of the rules that are designed to protect Americans’ constitutional rights. That should be shocking… 1/17
…but here’s the thing: we’ve seen this opinion a dozen times. The government comes before the FISA Court and details all of its violations. The court lightly chides the government for both the violations and for the delay in reporting them… 2/17
…it then grants the government’s request to lift or weaken the rules – sometimes the very ones the government has broken. And it concludes that the program is constitutional despite systemic non-compliance with the rules that supposedly render it constitutional. 3/17
Read 17 tweets
30 Jul 20
President Trump just became the first president in our country’s history to suggest postponing a presidential election. Elections were held on schedule, and without question, during the War of 1812, the Civil War, the Spanish flu, and World War II. 1/4
Make no mistake: this is the behavior of an autocrat. The law is crystal clear that the election must happen on November 3. Only Congress can change that date. And the Constitution says the president’s term ends on January 20, 2021 – no exceptions. 2/4…
The @BrennanCenter has catalogued all the powers available to the president in a national emergency. Not one allows the president to delay an election. That’s because no emergency could pose a bigger threat than allowing POTUS to mess with democracy. 3/4…
Read 4 tweets
21 Jul 20
You don’t have to be a legal expert to know that when unidentified federal forces wearing military fatigues snatch people off the streets into unmarked vans, it’s an abuse of power. Still, it’s worth spelling out what rules Trump is getting around and how. 1/14
From the moment he was elected president, Trump has been itching for an excuse to “send in the feds” to “take over” states or cities with Democratic leaders. The threats started even before inauguration. 2/14…
Of course, in this country, the president can’t just “take over” states and cities. Although Trump seems not to know it, the federal government’s powers under the Constitution are limited. So Trump and his Attorney General have been trying out legal loopholes. 3/14
Read 14 tweets
11 Jun 20
Trump just declared another national emergency. The “emergency” in question is – wait for it – the efforts of the International Criminal Court to hold U.S. personnel accountable for alleged war crimes committed in Afghanistan, including torture of detainees at black sites. 1/15
The declaration freezes U.S.-based assets of any foreign ICC personnel who try to exercise jurisdiction over U.S. war crimes, & anyone who assists them. Also, Americans face criminal penalties if they have any financial transactions with such people. 2/15…
This is a grotesque abuse of emergency powers, on par with the president’s declaration of a national emergency to secure funding that Congress had denied for building a border wall along the southern border. 3/15
Read 15 tweets

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