Here Comes the Sun, Mr. President

July 24, 2009
Guest Post

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."

These revisions to the intelligence oversight process are troubling. The Office of the Director of National Intelligence is itself an intelligence agency; the fox now guards the henhouse. That agency is in fact required to direct its reports to the Director of National Intelligence himself, not an independent board. And as recent reporting indicates, it appears that the intelligence community has been less than forthright with Congress. Discovering exactly who provides intelligence oversight, how effective that oversight is, and how smoothly the system runs are some of the major goals of our suit.

EFF first requested the intelligence community's reports to the IOB in February 2008, just before the board's role changed. Of the defendants in this suit, only the Department of Energy, Department of Homeland Security and the National Security Agency have produced anything in response to our requests. In particular, the NSA's reports were tantalizing. The 238 pages of almost completely redacted material represented dozens of reports submitted to the IOB from 2001 through 2006 - but not even the topic of a single report is readable. Our suit challenges these heavy redactions.

This year, we sent requests to the DNI and Attorney General, specifically requesting that they disclose any actions they've taken as a result of IOB reporting. With Congress struggling to stay in the loop, the IOB adjusting to its new, scaled-back role, and the DNI at the center of the process, our lawsuit seeks insight into how smoothly the government's intelligence oversight process functions.

On January 21, his first day in office, President Obama issued a memorandum declaring a new era of government sunlight, openness and accountability. The President promised that FOIA requests would "be administered with a clear presumption: In the face of doubt, openness prevails." EFF initially lauded the President's announcement. Since January however, we've seen very little change. Indeed, Obama has yet to appoint a single member to the IOB, which has been vacant for the past six months.

Under the FOIA, an agency has 20 working days to respond to a request. Almost a year and a half since our first requests on this issue, we're still waiting for so much as an acknowledgment of receipt from many agencies. By taking our case to court, we're working to force the executive's intelligence oversight processes into that sunlight that Obama promised.