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Notes from PCLOB meeting 2015-04-08

Notes by Eric Mill, taken at the April 18, 2015 meeting of the PCLOB to discuss their work plan for the ongoing EO 12333 report. From 10:03am to 10:35am. Notes are in the perspective of the speaker, even when written in 3rd person, but is not complete coverage of everything said, and none of these should be taken as quotes.

Official written statements (not exactly what was said, but should be close) posted to PCLOB.gov.

Medine

Board is most of the way through IC briefings, more to go. PCLOB expects to oversee EO 12333 long after this work is done.

PBLOC's mandate is about counter-terrorism, the reports and work will remain focused on CT.

  • deep dives of 2 specific CT activities by FBI/NSA
    • to be completed by end of 2015
    • could be largely or entirely declassified
    • expects to seek public interest declassification
  • public report explaining EO 12333 govern collection of information around Americans
    • informed by deep dives
  • adequacy of EO 12333 at protecting civil liberties

Brand

Thanks to staff. Challenging to serve a multi-member body. Responsibility to establish credibility and effectiveness in the long-term. Needs credibility not just with the public, but with Congress and the IC agencies. A lack of credibility reduces the likelihood that changes will be adopted by the IC. Also valuable when dispensing statutory advice. Agencies need to seek out PCLOB's advice. They need to see PCLOB as a serious, thoughtful body.

Though Brand voted against parts of 215, the reports showed PCLOB could be thorough and independent and critical, without being a reflexive antagonist of the intelligence community. Well considered, targeted recommendations.

PCLOB announced in July of EO 12333. The community took that to mean that it would cover everything about EO 12333 and what is done. However, EO 12333 is not just about CT, and the PCLOB focuses on CT. It would also be impossible to examine all of EO 12333, because it covers everything the IC does. It is not a discrete collection program. It is not a program at all. It does not provide legal authority like 702 and 215 does. It's a guiding document for the intelligence community. It tells NSA to be lead on SIGINT, CIA on HUMINT. 12333 is not the basis for how to conduct HUMINT. AG must adopt more rules to protect civil liberties.

It was a mistake to leave the impression that it would be a comprehensive omnibus review, because reviewing activities under EO 12333 for the long term. Should not rush or bite it off all at once. PCLOB should review one or two at a time under EO 12333, while reviewing other programs. Analyze civil liberties recommendations to that particular program, etc. The document before PCLOB has several things Brand agrees with. Says need not cover all of EO 12333 in one report.

Voting against because it does not foreclose against a general report around EO 12333 and its implemented structures. The exact nature of this report remains unclear to Brand. The vote leaves open that it might rule about the general civil liberties protections in EO 12333, which are impossible for the board to do. Extrapolating from results of 2 programs to the whole program would be incomplete or simply wrong, undermines PCLOB's credibility. That this clarification is not included gives Brand significant pause.

PCLOB's ability to effect concrete change if it forecloses the ability to make classified recommendations to the President and to Congress. Brand hopes she is able to support the results. PCLOB lacks internal processes to operate as a mature organization. This must be a top priority in the near term. As this happens, this must not only arrive on a workable mechanism to arrive at finished reports, and ways to recognize the rights and responsibilities as individual Senate-appointed officers.

Collins

Regularize PCLOB's internal processes and interactions with Congress and oversight bodies. PCLOB was supposed to begin this process after completing 702.

Collins supports this work plan, for several reasons. The proposal recognizes the scope that PCLOB has to CT. Collection of americans' information through non-targeted acquisition is of interest to PCLOB. Needs to go in without preconceived notions about what the end results will be, including whether or not there will be recommendations. Work plan does not fully commit to a public report, or declassified recommendations.

Collins supports this to demystify popular misconceptions around EO 12333, as they did with 702. EO 12333 is the approach of numerous presidents to govern and restrict intelligence activities. The American people should understand that we, are so far as Collins knows, unique in the world in having such a framework. PCLOB is not taking a comprehensive review of all of EO 12333, or to draw generalized conclusions about the framework.

It is not a fishing expedition, or a means to deliver preordained solutions in search of a problem. This work plan recognizes that PCLOB focuses on CT conducted inside EO 12333, as a first step. Collins hopes and expects that their attention will focus on establishing internal processes in working with oversight committees and the intelligence community. Good government to regularize procedures, given increased size of the agency.

Dempsey

Took longer to get here than they wanted, but they've ended up in a good place. This work plan represents 3rd phase of the board's work with regard to EO 12333. They noted AG guidelines called for things that are very outdated of agencies. EO is out of necessity broad and high level, AG guidelines give more detailed procedures and are crucial in translating the EO's promise to the IG -- Chairman wrote to AG in August 2013 to urge them to update their guidelines. PCLOB issued a short report summarizing this and what is outdated.

The last 6-8 months, been obtaining an overview of EO 12333 activities. Briefings from the intelligence community are near conclusion. PCLOB will adopt explicit criteria for selecting programs for these examinations, criteria relevant to ongoing activities beyond the two at this phase, focusing on activities affecting the rights of Americans and that have a significant CT purpose.

What CT focus means: this provides the framework for all of the intelligence agencies' activities, it all fits in there. PCLOB is primarily referring to activities not covered by FISA, but things regulated primarily by AG guidelines. They all trace their legal source to EO 12333. Generally, these are activities governing work overseas. But now they are more likely than ever to collect Americans' information. Also, non-Americans have human rights under treaties the US is party to.

In the 702 FISA report, the Board demonstrated, as other members note, that it wants to know a program deeply before coming up with any conclusions. This is as or more important for EO 12333. The conclusions drawn will be grounded in their examination of two programs. PCLOB is undertaking important, delicate work. PCLOB is also coming up with procedures, not easy. Our building is scheduled to be torn down. Governed by the Sunshine Act, which adds a serious burden. It's also generally difficult to both advise and oversee the executive branch. The challenges of the security clearance process have made it difficult to bring on a general counsel and a congressional liaison. Supports work plan.

Wald

Enthusiastically in support of the work plan. Needs to agree on the project description in order to proceed with the work. Wald feels they've followed the Sunshine Act in coming to this point. Wald doesn't perceive colleagues' differences as to the substance of this memorandum as critical to its usefulness as acting as a general guide to our future inquiries.

There are a few points must appear in this project description so as not to mislead either the IC, Congress, or the public, about what the PCLOB is attempting to do. CT focus; but must describe legal orbit/framework governing those programs that work on CT. It is time to get going. They've been working on it for months to get to this document, staff have been enormously tolerant.

Advice function is important, and requires trust and cooperation of the intelligence community. Same for Congress. Independent agency. Within executive branch, not required to get their approval on what we do. Doesn't require Congress' pre-approval either. PCLOB created out of 9/11, and the existence of PCLOB is unique in the world.

Medine

Reinforce praise to the staff. Move to vote on the proposed plan.

4-1 vote, Brand dissents. Vote and plan will be posted to www.pclob.gov.

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