Thread by @LizaGoitein

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 documents.pclob.gov/prod/Documents…

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