White House, Senate Plod Along on PCLOB Nominations

Senate Judiciary Committee ranking member Sen. Dianne Feinstein, D-Calif., told us she always has concerns about the pace of the nomination process, but it’s in the hands of Chairman Chuck Grassley, R-Iowa. Sen. Ron Wyden, D-Ore., told us he wants to see “swift nomination and confirmation.” PCLOB provides important oversight of government surveillance, so it’s “critically important to have a functioning, balanced board in operation as soon as possible,” Wyden said.

Last month, the committee advanced to the Senate floor President Donald Trump’s nominee to chair the board, Adam Klein (see 1802150036). Klein previously was a law clerk to Supreme Court Justice Antonin Scalia and U.S. Court of Appeals for the D.C. Circuit Judge Brett Kavanaugh. The White House announced two more PCLOB nominations in March: Princeton computer scientist and former White House deputy chief technologist Ed Felten and former clerk to Supreme Court Justice Sonia Sotomayor, and DOJ attorney adviser Jane Nitze. Neither Klein’s floor vote nor committee hearings for Felten and Nitze have been scheduled. A Grassley staffer said Thursday that there has been no update to that schedule. The lone sitting member is Elisebeth Collins, former assistant attorney general for legal policy and Republican chief counsel for Supreme Court nominations for the Senate Judiciary Committee. Collins testified during reauthorization of FISA Section 702, a surveillance program that PCLOB has followed closely.

Two former PCLOB employees told us intelligence community oversight is incomplete without the board’s quorum. Jim Dempsey, now a professor at UC Berkeley School of Law and former executive at Center for Democracy & Technology, said the board is part of a “spider web of checks and balances” for the post-9/11 intelligence community that includes congressional committees, the Foreign Intelligence Surveillance Court, the regular courts, the inspectors general and the chief privacy officers. “Those are all the core components that I think have an important role to play,” he said. All of them working together offer a counterbalance to government powers that have expanded since 2001, he said.

New America's Open Technology Institute Director-Surveillance and Cybersecurity Policy Sharon Bradford Franklin, the board's former executive director, urged the administration to name the fifth and final nominee so there will be a full bipartisan slate. “The Senate should then act promptly on confirmation of the slate, so that the PCLOB can resume its important work with a full complement of board members,” she said.

When PCLOB was fully functional between 2013 and 2016, intelligence agencies became more comfortable with and desirous of the board's input, Dempsey said. The board falls within the executive branch, but it’s independent, making it a unique group. Agencies recognized PCLOB’s advice is helpful when formulating new policy, he added. That Senate Judiciary completed Klein’s hearing without controversy is a good sign, Dempsey said, saying the other two nominees have “unimpeachable credentials with a record of public service.”

Without a quorum, the board can’t issue reports or recommendations or request certain information from intelligence agencies. It’s not completely incapacitated, though, because the board prepared for losing its quorum in January 2017 by authorizing several new oversight investigations. That has enabled staff to conduct investigations as part of oversight reviews and request documents. The staff can also prepare materials for when there's a quorum again.

PCLOB spokeswoman Jen Burita said the board’s continued activities include review of cybersecurity reports required under executive order 13636, and agency reports required under Section 803 of the Implementing Recommendations of the 9/11 Commission Act. PCLOB and staff also continue to focus on mission-related projects started before the board lost its quorum. “However, it would be up to a new board once it regains a quorum to decide agency priorities and which projects to pursue,” she said.

Electronic Privacy Information Center International Counsel Eleni Kyriakides said PCLOB played a critical role on FISA Section 702 after the Edward Snowden revelations. PCLOB is also critical to maintaining the U.S.-EU relationship on the Privacy Shield, she said, and without a quorum, agencies, policymakers and the American public have been left waiting for long-promised intelligence reports.