The other day I reported on a troubling new Executive Order from George Bush. It effectively neuters the Intelligence Oversight Board, which was created after the fall of Nixon to serve as a watchdog against illegal intelligence activities and, by extension, an out-of-control executive branch. On Friday, without explanation, Bush stripped the IOB of many of its core powers and duties. For example, until Bush's "reform" the IOB had the duty to report any suspected unlawful activities directly to the Attorney General. Now however IOB cannot get word of illegalities to the DoJ unless the President and Director of National Intelligence choose to convey that information on behalf of the Board. In general, the IOB has been transformed from investigator to a passive observer, a mere recipient of administration reports about its own wrongdoing.
It's obvious that Bush does not want to permit the IOB to function as an independent check upon the executive branch. But why did he act now to neuter the IOB?
Bush was successful for years in marginalizing the IOB, making it along with other internal review mechanisms "ineffective", in the words of Sen. Leahy. For the first two years of his presidency, Bush just left the Board vacant. Subsequently, he packed the IOB (like its parent board, the PFIAB) with plenty of cronies and incompetents. The four current members of the IOB include Bush's close friend, former Commerce Secretary Don Evans; his former economic advisor Stephen Friedman; and Arthur Culvahouse, a White House Counsel from the Iran-Contra era with ties also to Dick Cheney. So you wouldn't think Bush had much to fear from this tame Board. And indeed, even after the IOB finally got some personnel in 2003 it continued for years to send no reports of violations to the Justice Department.
All of this might suggest that the new Executive Order was designed to prevent the IOB from re-emerging as an effective oversight body under a future president. It's in line with the long-term strategy of Cheney and David Addington to destroy all the checks upon presidential powers that were put in place after Nixon's disgrace. Permanently neutering the IOB would be an essential part of the campaign to bolster a Unitary Executive.
Yet there could be more to this issue as well. For the IOB started to show a pulse last spring, after having sat for years upon hundreds of cases of apparent government violations of the law.
Although the FBI told the [IOB] of a few hundred legal or rules violations by its agents after the Sept. 11, 2001, attacks, the board did not identify which of them were indeed legal violations. This spring , it forwarded reports of violations in 2006, officials said...
Until recently, the board had not told the attorney general about any wrongdoing. "The Attorney General has no record of receiving reports from the IOB regarding intelligence activities alleged to be potentially unlawful or contrary to Executive Order or Presidential directive," the Justice Department told the House Judiciary Committee in a May 9  letter.
White House officials said the board began forwarding reports of problems shortly thereafter.
It's possible, then, that last year this congressional report of IOB nonfeasance publicly humiliated the Board into starting to do its job again. That could cause problems for the Bush administration, especially if (as in 2007) the IOB planned during the spring of this year to forward a set of reports about legal violations, this time those dating from 2007. That might include any number of details related to warrantless wiretapping or potentially even the politicization of the Justice Department. It's very hard to see, in any case, why a highly politicized Attorney General such as Michael Mukasey would want to have hot potatoes dumped in his lap this spring by means of a report from the IOB.
Last July, Alberto Gonzales got into difficulties with the Senate Judiciary Committee over previous testimony that turned out to be false. It involved 500 reports Gonzales had received of improper FBI wiretaps, reports that the IOB also received. Sen. Leahy asked Gonzales to explain why he had earlier pretended that no such violations ever occurred.
Recent documents obtained through Freedom of Information Act lawsuits and reported in the Washington Post indicate that you received reports in 2005 and 2006 of violations in connection with the PATRIOT Act and abuses of National Security Letters (NSLs). These violations apparently included unauthorized surveillance, illegal searches, and improper collection of data. These reports were significant enough to prompt reports to the Intelligence Oversight Board. Yet, when you testified under oath before the Senate Select Committee on Intelligence in April 2005, you sought to create the impression that Americans’ civil liberties and privacy were being effectively safeguarded and respected, saying "[t]he track record established over the past 3 years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the Act was passed." Earlier this month, in responses to written questions I sent you on behalf of the Senate Judiciary Committee about when you first learned of problems with NSLs, you, again, did not mention these earlier reports of problems. Would you like to revise or correct your misleading April 2005 testimony to the Senate Select Committee on Intelligence, or your July 6, 2007 response to this Committee’s written questions related to these issues?
Gonzales' response to the Committee became a further embarrassment. He claimed that illegal violations are not necessarily significant just because the IOB is notified of them. He went on to say that he'd make sure to pay more attention to such reports in the future.
The "good news," Gonzales states, is that under just-issued rules to correct the problem that Gonzales didn't tell the Senate existed, he'll be notified in a "semi-annual report" after the Justice Department's National Security Division studies IOB referrals.
So it looks as if the IOB was being prodded and pushed last summer, however reluctantly, back into a more active and visible role in investigating and reporting illegal intelligence activities. It could be why, at that very time, Dana Perino announced that the White House was thinking of curtailing IOB duties.
Perino said the board's "original unique mission and primary oversight role has been supplemented" in recent years by new layers of government. To watch for abuses, the administration now relies on the director of national intelligence -- a job created in 2005 -- along with presidentially appointed inspector generals. As a result, Bush is considering changes to Reagan's executive order, Perino said.
The White House's argument makes no sense, of course. Inspectors general are not a new invention (indeed the IOB was tasked with overseeing them). Nor is the DNI independent of the administration. The IOB was created specifically to bring outside "oversight" to the executive branch's intelligence activities, something an intelligence "director" cannot do. Last summer, this WH proposal to curtail the IOB was greeted with dismay.
A Clinton-era deputy national security adviser, James B. Steinberg, said, however, that "you have to have a civilian proxy who on one hand can be trusted with these secrets and can still call the operator on the carpet when they go astray. If you neuter these internal mechanisms, then you are basically saying there is no one watching the henhouse."
And that is basically what Bush has done with his new Executive Order. It was unnecessary. It was controversial. The rationalizations offered for it make little sense. It comes not long after the IOB sprang back to life and threatened to cause difficulties for some of Bush's pet surveillance programs. And the EO was rolled out on a Friday afternoon, without explanation, just as Bush headed off to Texas. I'd say there are some questions to be answered about why this "reform", and why now.
There's also the greater question: Will Congress roll over for this latest power grab?