Watchdog for spy agencies in dire need of nominees
A federal board responsible for protecting Americans against abuses by spy agencies is in disarray just weeks before President-elect Donald Trump takes office.
The five-member Privacy and Civil Liberties Oversight Board will have only two remaining members as of Jan. 7 — and zero Democrats, even though it is required to operate as an independent, bipartisan agency. The vacancies mean it will lack the minimum three members required to conduct business and can work only on ongoing projects. Members would have to be nominated by Mr. Trump and confirmed by the Senate.
The board was revitalized after former National Security Agency contractor Edward Snowden’s disclosures on the scope of U.S. spying in 2013. It notably concluded that the NSA’s phone surveillance program was illegal.
Since then, it has been crucial in ensuring members of Congress and the public have a window into the highly secretive and classified world of intelligence agencies.
But it’s unclear whether Mr. Trump will support robust intelligence oversight. During his campaign, Mr. Trump appeared to support strengthened intelligence overall and surveillance of mosques, but he has more recently expressed distrust of intelligence agencies. The Trump transition team didn’t immediately respond to a request for comment.
Jim Dempsey, a Democrat, will leave the board Jan. 3 because for months the Senate has not confirmed his renomination by President Obama. Former U.S. Judge Patricia Wald, the only other Democrat, informed the White House this month that she intends to retire effective Jan. 7.
The board also will lose its executive director, Sharon Bradford Franklin, who plans to step down before Mr. Trump’s presidency, according to a person with knowledge of the board’s operations who wasn’t authorized to speak publicly about the matter.
Already in limbo is a public oversight report on the use of a Reagan-era executive order that since 1981 has authorized sweeping powers by intelligence agencies like the NSA to spy even on innocent Americans abroad and never has been subject to meaningful oversight from Congress or courts.
The senior Democrat on the Senate Select Committee on Intelligence, Dianne Feinstein of California, has said her committee has not been able to sufficiently oversee programs operated under the order.
The privacy panel’s report on the order is stalled and no work is being done on it, according to the individual, who has knowledge about the project’s status. Some individual agency reports related to the order were expected to be completed before the board loses its quorum, the person said.
Another review, of a 2014 presidential directive that details U.S. signals-intelligence activities for foreign intelligence and counterintelligence purposes, is on track to be released before Jan. 20, the individual said. That review was requested by Mr. Obama.
One of the board’s two remaining Republicans, Rachel Brand, whose term officially expires in January, could continue through March. If Mr. Trump moves forward with any board nomination, she may continue through the end of the year. If Ms. Brand leaves, Republican Elisebeth Collins would become the last board member; her term ends in January 2020.
The oversight board was created by statute in 2007. Its members serve part time and are required to be able to maintain a top-secret clearance.
While lacking enforcement ability to impose its recommendations on the intelligence community, the board does have the “power of persuasion and invoking public concern about issues,” said former board chairman David Medine, a Democrat who resigned a year early, in July, to work for a development organization. That power is significantly diminished without the minimum three members necessary to report findings to the public.
The board’s review of intelligence agencies’ use of Section 215 of the Patriot Act, which the NSA used to conduct bulk collection of domestic telephone records, concluded that the program was illegal and should be shut down. That finding split along party lines, with the Democrats in the majority.