By Nate Cardozo, Open Government Legal Fellow, Electronic Frontier Foundation
This week, the Electronic Frontier Foundation (EFF) filed suit to compel the CIA, FBI, National Security Agency and other members of the intelligence community to turn over documents detailing their concerns about their own misdeeds. We sued under the Freedom of Information Act (FOIA), a law that allows anyone to request information about the federal government's activities. President Obama has called the FOIA "the most prominent expression of a profound national commitment to ensuring an open Government."
The documents we're seeking involve reports to the little-known Intelligence Oversight Board (IOB), which was created within the Executive Office of the President in the aftermath of Watergate. Until last year, the board was the primary body within the executive branch providing accountability for the intelligence community. Every intelligence agency was required by executive order to send the IOB quarterly reports of "any intelligence activities of their organizations that they have reason to believe may be unlawful or contrary to Executive order or Presidential directive." The IOB reviewed and summarized this information for the President, and forwarded reports of misconduct that it believed violated the law to the Attorney General for prosecution. With few exceptions, reports to the IOB have not been made public.
In February, 2008, President Bush issued a controversial executive order undercutting the IOB's oversight role, shifting much of the board's responsibility to the newly created Director of National Intelligence (DNI). While the IOB still receives reports of the intelligence community's questionable activity, it no longer has the authority to refer those reports to the Attorney General for prosecution. That job that now falls to the DNI. Intelligence agencies do not have to file reports with the IOB or the DNI quarterly, but rather when "appropriate."