The Privacy and Civil Liberties Oversight Board – known by the ungainly acronym of PCLOB – is refusing to release documents in response to a Freedom of Information Act (FOIA) request, claiming it has a duty to protect “pre-decisional and deliberative materials” – presumably on behalf of some other agency.
“The withholding of decision-making records is an understandable right the government maintains to protect its ability to formulate policy,” said Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability (PPSA), which filed the FOIA request. “But why is PCLOB claiming this exemption for another agency? And which agency are they shielding from scrutiny?”
PCLOB was established by the 9/11 Commission Act of 2007 to ensure that the federal government’s efforts to protect the homeland from terrorists are balanced with the need to protect the privacy and civil liberties of Americans. It has since been more of a lapdog than a watchdog of the federal law enforcement and intelligence agencies it is meant to oversee.
For example, PCLOB promised to conduct a six-year “deep dive” study into one of the most controversial issues in surveillance, Executive Order 12333. Signed by President Ronald Reagan in 1981, 12333 organizes how the government collects, analyzes and uses foreign intelligence and counterintelligence. Because the program relies on no statutory authority, civil liberties organizations have long been skeptical of the uses to which 12333 can be put. PPSA and other organizations were astonished to see that PCLOB’s “deep dive review” produced what many agree is a description of the executive order at the level of a high-school book report.
There are other signs of dysfunctionality. In June, PCLOB board member Travis LeBlanc took the rare step of complaining about the independent agency’s lack of “analysis of the efficacy, costs and benefits” of XKEYSCORE, an NSA search engine that is a key tool of 12333.
The PPSA filing built on a prior 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. After Eddington’s requests were denied, PPSA followed up with a FOIA request seeking “any agency records mentioning the Eddington request or any denial or other responses.”
PCLOB’s response was to release 20 documents concerning its correspondence with Patrick Eddington, while withholding 58 records. It did so on the basis to protect “personal privacy” as well as those “pre-decisional and deliberative materials.” The released records show that PCLOB denied Eddington’s request after consulting repeatedly with another unnamed agency.
“Once again, an independent agency meant to offer clarity muddies the waters,” Schaerr said. “PPSA’s next move will be to seek the name of the agency for which PCLOB is making this claim. The heart of our inquiry is still to learn the scope of Executive Order 12333 operations, resting on an authority with no basis in statute.”