Discussion Prompt: Is productive engagement on intelligence law, policy and oversight possible between the secret and civilian world and what can be gained from it? Reflections on best practice, lessons learned, and plans for the future.

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Bodies overseeing the activities of intelligence agencies often operate themselves in some necessary degree of secrecy. Despite this fact, or rather precisely because of it, regularly conferring with a dedicated civil society reference group is extremely valuable for both parties: it helps oversight bodies to not only diversify their views, but also to identify and address civil liberty risks, and it allows non-government actors to better understand declassified documents and have their voices heard.

In an earlier article on the engagement between civil society and the secret world of intelligence, Cheryl Gwyn, New Zealand’s then Inspector-General of Intelligence & Security, described how she set up a civil society reference group to confer with her independent oversight agency, and explained how fostering openness and trust with civil society improved the performance of her agency.

Having worked both for an intelligence oversight body and for civil society organisations (CSOs) seeking reform of intelligence practices, I wholeheartedly agree with former Inspector-General Gwyn that engagement between the secret world of intelligence oversight and the civilian world of non-governmental organisations (NGOs) is not only possible, but is also worthwhile. Although it can be a frustrating process on both sides, I firmly believe that these two worlds can and should come together regularly to promote robust oversight and public accountability.

Worthwhile engagement

I served as Executive Director for the U.S. Privacy and Civil Liberties Oversight Board (PCLOB) from the fall of 2013 through January 2017. This independent oversight body is tasked with reviewing U.S. counterterrorism programmes to ensure that they comply with the law and include adequate safeguards for privacy and civil liberties. The PCLOB is headed by a bipartisan slate of five Board Members, and as Executive Director, I directed the work of our staff in supporting and carrying out the Board’s mission. All Board Members and staff were required to have security clearances, and a critical part of our work involved reviewing classified information. But, like Inspector-General Gwyn — who sought outside perspectives to help ensure her agency’s views were not “overly limited” by being contained “in the classified national security ‘bubble’” — the PCLOB sought regular input from NGO advocates.

Having come from the NGO world, I reached out to a variety of civil society representatives and invited them to a series of sessions in which they could provide input to the PCLOB. Although Board Members were limited in the extent to which they could share their views with the NGO community, these sessions provided a valuable opportunity for the PCLOB to hear from advocates about what programmes and issues they recommended for PCLOB review, and the privacy and civil liberties risks they felt these programmes presented. In particular, it was helpful for the NGO representatives — who necessarily lacked access to classified information — to share their recommendations for the questions the PCLOB should ask of the intelligence agencies when conducting oversight reviews.

Civil society feedback

Following a session with a great many CSO representatives in December 2014, the PCLOB published a memo outlining the input received during its course. This session covered the PCLOB’s review of activities conducted under Executive Order 12333, which governs most of the U.S. intelligence community’s operations. Civil society representatives presented suggested frameworks for the PCLOB’s analysis, key privacy and civil liberties threats to examine, and critical questions that the PCLOB should ask during its review. From the perspective of PCLOB staff, this session and other more informal ones were extremely helpful in flagging issues and providing context for our reviews.

Both before and after serving at the PCLOB, I have held positions with different NGOs, where my work has included reviewing publicly available information about intelligence programmes and seeking reforms to ensure robust safeguards for privacy and civil liberties. As part of this work, I have had the opportunity to participate in numerous meetings between civil society representatives and intelligence oversight officials. In particular, the Office of Civil Liberties, Privacy and Transparency of the Office of the Director of National Intelligence (ODNI) has convened periodic meetings held under the Chatham House Rule to foster dialogue and information sharing.

Decoding declassified documents

Frequently, this office will set up a discussion session in connection with ODNI’s disclosure of newly declassified documents to provide context and answer questions from the NGO community. On other occasions, these sessions cover upcoming debates over renewal of a surveillance authority and provide NGO representatives with an opportunity to present arguments for needed reforms. More often than not, the officials will state that they need to “take back” our questions to determine what information they can provide in an unclassified environment. This can be frustrating, and the eventual answers can be less than satisfying. Nonetheless, I have found that these dialogues are still valuable. In particular, classified government documents are not generally written to be understandable to the public once declassified versions are released, so having direct conversations with officials who can help explain the documents is helpful.

Three models of engagement

The positive views on engagement that I developed through my personal experiences have been reinforced by an extensive series of interviews I conducted in support of a report that I wrote with Eric Kind. In our report, Strategies for Engagement Between Civil Society and Intelligence Oversight Bodies, published in 2018, we analysed the relationships between CSOs and oversight bodies in eight countries: Australia, Canada, France, Germany, the Netherlands, New Zealand, the United Kingdom, and the United States. We interviewed both civil society representatives and oversight officials, and based on our review, we outlined three models for productive engagement between bodies that conduct oversight of surveillance and CSOs: cooperation toward a shared goal, activating oversight, and promoting better understanding between civil society and oversight.

For example, when CSOs provide research memoranda or key questions to guide an oversight review, this can assist an oversight body toward the shared goal of ensuring that intelligence activities are conducted in accordance with the rule of law. With regard to activating oversight, CSOs can be influential in providing the public support needed to ensure that governments establish oversight bodies whose missions include transparency to the public. And as for promoting better understanding between civil society and oversight, the sessions we held at the PCLOB as well as the conversations organised by the ODNI Office of Civil Liberties, Privacy and Transparency have all served this purpose.

Possible steps forward

Our report includes a series of recommendations for increasing the amount, and improving the quality, of engagement between civil society and oversight going forward. These include urging oversight bodies to seek input from civil society on technological questions, noting that despite the barriers posed by classified information, outside technologists can nonetheless help ensure that oversight bodies are not relying solely on technical expertise from within the agencies they oversee. We also recommend several very practical steps, such as holding a series of offsite conferences to encourage sustained and frank dialogue.

Transparency renewed

Shortly before I left my position at the PCLOB in January 2017, the agency lost a quorum of Board Members. Although it took almost two years, the PCLOB is now back up and running with a full slate of five Board Members. And in July 2019, the newly reinvigorated agency took an important step that Eric Kind and I had recommended: the PCLOB published a list of its current oversight projects. As we noted in our report, such transparency can promote public engagement and help CSOs to provide input to inform the oversight reviews. Hopefully, the PCLOB will also soon resume its practice of engaging directly with civil society representatives in addition to holding public hearings. I look forward to the opportunity to participate in these dialogues.