Republicans on the House Intelligence Committee, upset by an opinion piece penned by the chairman of a government watchdog on privacy issues, have advanced a measure to block the agency’s access to information related to U.S. covert action programs.
The provision, in the 2016 intelligence authorization bill, takes a jab at the Privacy and Civil Liberties Oversight Board, an independent executive-branch agency whose job is to ensure that the government’s efforts to prevent terrorism are balanced with the need to protect privacy and civil liberties.
David Medine, the board’s chairman, co-authored an essay in April arguing that if the United States were to continue killing U.S. citizens by drone strikes, an independent review panel was needed to assess whether targeting decisions are appropriate.
In the piece, Medine, who was speaking for himself, suggested that the PCLOB would be a good candidate to serve as that review board.
That article “really stirred the pot,” said one congressional aide, who like others interviewed for this article was not authorized to speak on the record. The committee majority saw that suggestion, along with other reviews the board was undertaking, the aide said, as “mission creep.”
The provision, which the committee approved by voice vote last week, was an attempt by Republicans to make sure the board members “stay in their lane,” as another aide put it. “Covert action, by its very definition, is an activity that the United States cannot and should not acknowledge publicly,” said the committee’s chairman, Devin Nunes (R-Calif.). “Review of such activity is ill-suited for a public board like the PCLOB.”
But Democrats on the committee said the measure was unnecessary and short-sighted. “That’s essentially asking an umpire to watch a game with one eye closed,” said Rep. Jim Himes (D-Conn.). “The fact is there are covert activities that pose very deep and concerning civil liberties issues.”
A case in point is the killing of the American-born imam and al-Qaeda operative Anwar al-Awlaki in a drone strike in 2011, Himes said. “There is no more profound civil liberties issue that is less subject to cure or remedy than killing someone. So it does not seem to be smart to ask the PCLOB to refrain from reviewing programs that may pose the most profound civil liberties challenges.”
Democratic committee members said they will try to remove the provision, if not before a floor vote on the bill as early as Friday, then when the bill is reconciled with the Senate version.
The oversight board was set up at the recommendation of the 9/11 Commission in 2007 but did not begin work until 2013. According to the law that authorizes it, the board may have access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.
“The way we see it is they don’t have the authority to access covert action now — there’s nothing that grants them the authority,” the second aide said. “But at the same time, there’s nothing that specifically prohibits it. It’s possible that someone there could take a broad view of their mandate and access that information. If so, that’s a problem.”
In its two years of operation, the board has produced two reports, neither of which has touched on covert programs. And individuals familiar with board matters say the board has not sought access to such materials. At the same time, Himes noted, the board has never mishandled classified information.
Covert action refers to secret activities undertaken to influence political events. They are designed to hide the identity of the government and can be denied by that government. The CIA’s drone program in Pakistan, for instance, which has never been officially acknowledged, is covert, as was the operation to kill Osama bin Laden.
The issues discussed in Medine’s article — the targeted killing of U.S. citizens who are al-Qaeda members overseas — could fall under the board’s statutory authority to review. And that, the second aide said, was worrisome to the Republicans.
It was not just the Medine article that troubled the GOP. The committee majority also had concerns that the board’s review of Executive Order 12333, which outlines the roles and responsibilities for U.S. intelligence agencies, would exceed the board’s charge to look at counterterrorism programs.
“Those two things in combination made the Republicans fear mission creep,” the first aide said.
To assuage the GOP’s concerns, Himes offered an amendment to clarify that the bar on the PCLOB receiving information related to covert action should apply only to programs “unrelated to protecting the United States from terrorism.” His amendment failed.
If the GOP provision becomes law, Himes asserted, “it will hobble the PCLOB.”
Rep. Adam B. Schiff of California, the committee’s ranking Democrat, said he hoped the GOP provision could be blocked. “If [the Republicans] are concerned that the PCLOB is going beyond their mandate, that’s one thing,” he said. “But if the desire is actually to curtail a mandate that the board has, that’s another. I think they wanted to affirmatively narrow the PCLOB’s oversight responsibilities, which we oppose.”