Although POGO supported the funding of the Public Interest Declassification Board last year, we realize there are some important weaknesses in the legislation.
Currently, the first real test is underway of the Board's power to review classified documents--and, if it thinks it is in the public interest, recommend declassification. One weakness had to with confusion over whether or not Congressional committees with jurisdiction can have the Board review classified information without Presidential approval.
At issue are two parts of the Public Interest Declassification Act of 2000 as amended by the Intelligence Reform and Terrorism Prevention Act of 2004. Section 703(b)(5)--an insertion from 2004--states that the Board will:
...review and make recommendations to the President in a timely manner with respect to any congressional request, made by the committee of jurisdiction, to declassify certain records or to reconsider a declination to declassify specific records.
However, a Section 704(e)--also an insertion from the 2004 amendments--expounds upon this and states--note the bolded text:
If requested by the President, the Board shall review in a timely manner certain records or declinations to declassify specific records, the declassification of which has been the subject of specific congressional request described in section 703(b)(5). (emphasis POGO's)
The Chairman of the Public Interest Declassification Board, L. Britt Snider--no stranger to the struggle between Congress and the Executive on access to secrets--told Congressional Quarterly last week that, "There's no way we can require [the White House] to cooperate with our review if they're opposed to it."
POGO believes that the White House should agree to let the Public Interest Declassification Board review classified portions of the Senate Select Intelligence Committee reports on prewar Iraq intelligence. But if the Board is going to continue to exist, at a minimum it should be able to review classified documents at the request of Congress--regardless of what the Executive thinks. And if Congress truly wants to empower the Board, it should give the Board the power to declassify, not just to recommend declassification.
-- Nick Schwellenbach