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Clients are often faced with a failed 'closure' challenge. They have been mistreated; administrative due process provides a path to remedy, but that path leaves the client feeling empty. The scars are so deep, merely pushing the file down 'due process alley' does not lift the pain nor make the employee or applicant whole.
In these cases, a mere settlement or well-rounded opinion from a judge is not enough. The client may need a finding that the agency did wrong. Inspectors General (IG) can receive complaints of wrongdoing. Such a finding from an IG can lift some of the grief clients carry after they have been targeted for abuse by supervisors and managers.
For those working in the Intelligence Community (IC), action by the Intelligence Oversight Board (IOB) can do the same.
The President's Intelligence Advisory Board and the Intelligence Oversight Board
The President's Intelligence Advisory Board (PIAB) is an Intelligence oversight tool within the Executive Office. PIAB members are appointed by Presidential authority without any Senate involvement, and report solely to the President. A finding by the IOB through the PIAB would provide a remedy, but only if the President acts. The endgame for IC whistleblower protections under Presidential Policy Directive 19 and its statutory codifications is similar in this respect.
This unilaterality distinguishes PIAB from other Intelligence oversight mechanisms like the Director of National Intelligence (DNI), Courts, Congressional Oversight Committees, or agency/department Inspectors General (IGs). PIAB's core function is to provide the President with an independent source of information on the state of the Intelligence Community (IC), and advise accordingly. If a client's employment or security issue raises an intelligence concern that has bearing on the state of the IC, then the IOB can take the complaint.
When Your IC Employment Issue or Security Concern Raises a Public Concern
Determining jurisdiction is critical to an IOB filing through the DNI: a definitional issue. The Executive branch element in question, having injured the informant requiring the President's action, must be a "department concerned." I.e., an executive department listed in Section 101 of Title 5, United States Code (U.S.C.) that also contains an organization listed in or designated pursuant to Section 3(4) of the National Security Act of 1947, as amended (50 U.S.C. 401a(4)). The department concerned must also be engaged in "intelligence activities," as specified in section 3.5 of Executive Order 12333 of December 4, 1981, as amended.1
Senator Frank Church (R-ID) held a series of hearings following the release of the Pentagon Papers in the mid-1970s, which exposed the 'crown jewels' of the IC (then headed by the Director of Central Intelligence at the CIA). A series of illegal intelligence operations executed throughout the 1950s and '70s, therefore, came to public attention in the early 1970s, triggering scandal and outrage. As a direct response to the resulting public protest, and based on the report of the Rockefeller Commission, President Ford issued an executive order in 1976 which established the Intelligence Oversight Board (IOB).
The American people, as sovereign, had spoken in the mid-term elections of 1974. The IOB's presence was meant to reassure the public by serving as an independent safeguard within the executive branch. Apart from concerns with IC effectiveness, IOB's oversight zeroed in on whether IC activities were appropriate and legal. Matters of IOB concern might range from intentional, flagrant abuses of Intelligence resources to technical failure and human error.
So, in framing a complaint to the IOB, the client supporting their attorney's advocacy with a declaration needs to focus on (1) Effectiveness, (2) Abuse of IC resources, and (3) Technical Failure and/or Human Error. In each of these areas, the standard of review hinges on whether the actions were "appropriate" and "legal." Looking for violations of law, rule, or regulation is the best point of departure in framing any empirical evidence supporting the complaint.
What is IOB's Role in the Whitehouse?
Each President shapes their own IOB mission and agenda based on those aspects of the IC that they seek to promote or discourage. The IOB's place in the constellation of Executive branch entities has shifted over the decades. Its core mission, however, has remained one of Intelligence oversight: specifically for the President. Though IOB monitors the intelligence community for compliance with the law, Constitution, and Executive Orders and Directives, it is not an enforcement mechanism. Like inspectors general, the IOB has no means of generating a remedy in and of itself. IOB has no authority beyond monitoring, conducting inquiries, and presenting its findings to the President. Being an advisory arm, these findings may come in the form of policy recommendations. But the President can take action based on an IOB finding.
IOB's Role in the Intelligence Community
The IOB process is governed by Executive Order 13462, as amended by EO 13516 (2009). Under Section 8 of that Executive Order, the DNI and heads of departments in the Intelligence Community shall provide information—the provision is mandatory, not discretionary—as the PIAB and the IOB deem necessary for them to perform their functions designated under the same order.2 So the filing goes to the IOB via the Director of National Intelligence or the IC head of a department. And while the Executive Order does not create a cause of action for the complainant, it does trigger a process which, if an investigation ensues, can be forwarded to the IC heads of department, the DNI, and the President for a remedy. The President may act. The President owns the Executive branch.
Once in house at Liberty Crossing, the IOB filing through the DNI falls under Section 4 of the Executive Order. The IOB, with the filing in hand, reviews the evidence provided by the injured informant, and with respect to the evidence provided:
assess[es] the quality, quantity, and adequacy of intelligence collection, of analysis and estimates, and of counterintelligence and other intelligence activities, assess[es] the adequacy of management, personnel and organization in the intelligence community, and review[s] the performance of all agencies of the Federal Government that are engaged in the collection, evaluation, or production of intelligence or the execution of intelligence policy and report[s] the results of such assessments or reviews.3
The IOB permanent staff then investigate and make recommended findings of fact to the Board, assisted as necessary by other offices and entities of the IC. In the final IOB report, the Board may "consider and make appropriate recommendations to the President, the DNI, or the head of the department concerned with respect to matters identified to the PIAB by the DNI or the head of a department concerned."4 Where criminal activity comes to light, IOB is obligated to refer criminal activities to the Attorney General, not simply the President.
Oversight of IOB Investigations
This "MIRV" effect of a finding can be frustrating to a client because, at some point, the finding moves across multiple trajectories and the client needs to let go of the illusion that they can 'control' an investigation: the quality of the complaint and the evidence supplied by the client, or gathered by the IOB and its tasked surrogates, need to guide the effort to completion.
The extent to which this actually occurs is unclear to the majority of the public. In a 1977 letter to President Carter, then-IOB Chair Thomas Farmer advised the President against establishing dual-reporting requirements for the IOB. Therein, Farmer described IOB as a "small group of confidential advisors" within the White House staff. Any attempts to subject the IOB to Congressional oversight is thought to hamper its effectiveness as a "Presidential instrument," one empowered by its confidentiality and supposed apoliticality. So, the IOB is more like the Intelligence Community Inspector General, which too lacks a dual-reporting requirement. By contrast, the Defense Department Inspector General reports to the President, as well as the Chairs of the Senate Armed Services Committee and the House Armed Services Committee.
How Effective is the Oversight the IOB Provides?
The effectiveness of IOB, as with many oversight mechanisms, hinges upon two factors: independence and authority. The strength of either fluctuates from administration to administration. This fact alone speaks a great deal to IOB's relative effectiveness as an Intelligence Community watchdog.
How Independent is the IOB?
Because it operates solely at the behest of the President, the IOB is only as effective—and independent—as the sitting President wishes it to be. Its mission is to offer the President a clear-eyed, objective perspective. Should any given President suffer only the company of sycophants, then sycophants will make up the IOB and encompassing PIAB.
Much of the vaunted independence of PIAB stems from its membership. No members are Federal employees; meaning, no members work for the agencies under their jurisdiction. Nor are members paid for their service. This then means, of course, that only those of sufficient financial means are in a position to serve.
In short, PIAB's ostensible independence is guaranteed by two facts: Firstly, PIAB members are not employed by the agencies they monitor; and secondly, they are not dependent upon their place on the Board for income. PIAB members—in theory—should bear no obligation that might varnish their supervision of U.S. Intelligence or their subsequent counsel to the President.
How Much Power Does the IOB Have?
Like the encompassing PIAB, the IOB has no authority to enforce the laws and policies it monitors. Its mandate is advisory: to monitor the Intelligence Community (IC), inform the President of compliance concerns, and advise accordingly. But if knowledge is power, then the IOB is imbued with tremendous power: especially considering its members are appointed by Presidential whim with zero consent from or accountability to any other branch.
In addition to direct access to the President, IOB has access to whatever information it requires to fulfill its function of ensuring IC compliance with the law. Agencies are required to self-report any violations to IOB, be they simple error or willful misuse of Intelligence systems and resources.
IOB activities and reports are largely secret to all but the President. On the one hand, this secrecy shields IOB from bending to public pressure. On the other, accountability is all but nonexistent. IOB's accountability is chiefly proximal to the President: they are accountable to the President, and the President—who may or may not be acting upon PIAB counsel—is more publicly accountable.
As the client files with the IOB, they have options for cutting against this opacity. They can cross-file with the Intelligence Community Inspector General, generating an Intelligence Community Whistleblower Protection Act disclosure for transmission to the Senate Select Committee on Intelligence or the House Permanent Select Committee on Intelligence. All of these filings can be made within the four corners of a Non-Disclosure Agreement, as all these government offices are eligible for access to classified information. There is no "State Secrets doctrine" to invoke against the client.
Footnotes
1. Executive Order 13462 (2009, as amended) at Sec. 2(a)&(b).
2. Executive Order 13462, President's Intelligence Advisory Board and Intelligence Oversight Board at Section 8, Functions of Departments Concerned and Additional Functions of the Director of National Intelligence (2009).
3. Id. at Sec. 4(a).
4. Id. at Sec. 4(b); see also Sec. 6, Functions of the IOB, at Sec. 6(b)(i)(a)&(c)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
