FISA: Reform

Did the PCLOB Overstep?

By Paul Rosenzweig
Thursday, January 23, 2014, 2:42 PM
As The New York Times and Washington Post reported, the Privacy and Civil Liberties Oversight Board (PCLOB) is going to issue a report on section 215 of FISA and the telephone metadata program.   The highlight, of course, is that the board has voted 3-2, on a party-line basis, to opine that the meta-data program is illegal.
This is unfortunate on a number of levels.  First, of course, the partisan split makes it seem as though the question of legality is a Democrat/Republican issue -- when, given the Obama Administration's defense of the program, it surely is not.  Second, and it pains me a bit to say this, as several members of the PCLOB are my colleagues and friends, but I'm not sure that opining on the legality of the program is within the ambit of the PCLOB's duties.  Here's the language defining the mission of the PCLOB as reconstituted by Congress:
(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and
(2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.
Both of those call (appropriately) for the Board to make normative recommendations about the policy balance struck.  It seems to me a bit of a stretch to say that the mission also includes reaching judgments on the legality of a program (or, as in this case, second-guessing the judgments of legality (and illegality) already rendered by Courts).  I fear that the controversial nature of this conclusion will obscure the fact that (reportedly) the Board was unanimous in making 10 other policy-oriented recommendations that will be a significant addition to the debate as Congress considers reform.