Lawsuit Concerns Secretive Powers of Executive Order 12333
The Project for Privacy and Surveillance Accountability filed suit today against the Privacy and Civil Liberties Oversight Board that will be a major test case of whether laws governing Freedom of Information Act requests must be obeyed. It also seeks to reveal the extent to which the Board has performed – or not performed – its watchdog role over non-statutory surveillance authorities conducted in secret.
“PCLOB is tasked with oversight of U.S. intelligence agencies, to protect against the possibility of abuse of civil liberties,” said Gene Schaerr, PPSA general counsel. “It is supposed to be our watchdog against such encroachments. The need for this lawsuit demonstrates, in fact, that PCLOB is more like a lazy pooch sleeping at the feet of its masters.
“We will demonstrate to the court that the Board is ignoring the law,” he said.
PPSA’s filing builds on a FOIA request from Patrick Eddington of the CATO Institute asking for records in April, 2019, from the Board concerning reports, and correspondence with agencies, about Executive Order 12333.
Sen. Richard Burr, former chair of the Senate Select Committee on Intelligence, alarmed civil libertarians everywhere when he took to the Senate floor to declare that under 12333 authority, the executive branch can do whatever it wants, without “guardrails” or statutory authority for mass surveillance.
The Board confirmed to Eddington that it completed at least one “deep dive report” under Executive Order 12333 concerning at least one federal agency, but withheld that report. It refused to release any records regarding agency refusals to provide information requested by the Board. In a follow on letter to the Board, PPSA concluded: “It appears from these responses that the Board has censored itself at the direction of the very agency subject to its oversight.”
PPSA filed its own FOIA request on Sept. 16, 2020, asking PCLOB to produce records mentioning the Eddington request or any denial or other responses to it. PPSA also doubled down on requests for information about 12333.
“We gave the Board far more than the maximum thirty business days from our FOIA request,” Schaerr said. “It is time to turn to the courts to determine if the laws governing FOIA requests must be respected by PCLOB, or if the law can be effectively ignored.”