[Dataloss] Congress Seeks 'Bite' For Privacy Watchdog

[Richard Forno]

Congress Seeks 'Bite' For Privacy Watchdog

By Ellen Nakashima
Washington Post Staff Writer
Tuesday, February 13, 2007; D01
http://www.washingtonpost.com/wp-dyn/content/article/2007/02/12/AR2007021201
430_pf.html

Key lawmakers want to replace a White House privacy and civil liberties
board created by Congress in 2004 with one that is more independent of the
president. The idea is to make the board more like the one envisioned by the
bipartisan 9/11 Commission.

As the commission's vice chairman, Lee H. Hamilton, said yesterday: "We felt
that you had to have a voice within the executive branch that reached across
all of the departments of government with strong powers to protect our civil
liberties."

But the five-member Privacy and Civil Liberties Oversight Board is resisting
proposals that would dramatically change its composition and powers. The
battle is another sign of the changed political landscape, with the
Democratic-controlled Congress pushing for stronger oversight of the Bush
administration's counterterrorism programs.

"In 2004, the Senate endorsed the idea of a strong privacy and civil
liberties watchdog to keep vigil as the government launched a full-bore
effort to make the nation safe from terrorists," said Sen. Joseph I.
Lieberman (I-Conn.), the chairman of the Homeland Security and Governmental
Affairs Committee who caucuses with the Democrats. "Congress passed a weak
proposal. Now we are back to make sure the watchdog has both a bark and a
bite."

House Democrats see the board, which took office only last March after a
series of delays, as too beholden to President Bush, who selects the
members.

Despite its position, the board has had to wait months before receiving
briefings on sensitive administration programs, and then only with
permission from the White House counsel's office.

"Since its inception, the administration has failed to properly fund the
board, and quite frankly, there have been no visible results of its
existence," said Rep. Bennie Thompson (D-Miss.), chairman of the House
Homeland Security Committee.

Separate House and Senate measures would require that the entire board be
confirmed by the Senate -- now it is only the chairman and vice chairman --
and that no more than three members be from one party.

The House provision would remove the board from the Executive Office of the
President but keep it within the executive branch and give it subpoena
power, as recommended by the 9/11 Commission. The Senate version would keep
the board within the executive office and allow it to ask the attorney
general to issue subpoenas. Congress would have to be notified if a subpoena
request were denied or modified.

Two board members, however, including the lone Democrat, said the board
would lose its effectiveness if it were outside the executive office and had
"adversarial powers" such as subpoenas.

Vice Chairman Alan Charles Raul said he wanted an environment in which
agencies initiated contacts with the board to review programs with civil
liberties implications -- before there is a controversy.

"It's almost unreasonable to think that an agency is going to reach out at a
very early stage to a body that by design, by mind-set and by reporting
channels, is outside the president's supervision, even if they're
technically within the executive branch," Raul said yesterday.

Lanny J. Davis, who served as special counsel to President Bill Clinton,
agreed. At the same time, he said, "The board needs a clearer mandate to be
able to speak independently and to have full and complete access to all
programs affecting privacy and civil liberties, both evolving as well as
those in place."

The board has asked Bush to issue a directive to all executive agencies that
will spell out its mandate to ensure that it is involved in the development
of programs that affect privacy and civil liberties.

White House spokeswoman Dana Perino yesterday declined to comment
specifically on that request, saying that there have been "internal
discussions about any possible refinements that could be made" to make the
board more effective.

The board has held only one public forum, in December at Georgetown
University, where the public was given an opportunity to express its
concerns. The board's first report to Congress is to be presented in March.

In November, board members said they had been briefed by the National
Security Agency on its warrantless wiretapping program and that they were
impressed by the protections, but failed to provide specifics.

The board paid a return visit to the NSA two weeks ago and observed the
surveillance program, which monitors people, including some in the United
States, who have links to al-Qaeda. This is done under the supervision of a
secret court that administers the Foreign Intelligence Surveillance Act
(FISA).

Raul and Davis said they were "more reassured" after the second briefing
that the program had taken into account civil liberties and privacy
protections. They said the agency had "multiple layers" of review, including
audit trails to track whoever has access to the data. If information appears
that is not related to counterterrorism, it is not shared with other
agencies, Raul said.

On that visit, Raul also reviewed the secret court orders governing the
spying program that were issued Jan. 10 and supporting material submitted by
the Justice Department. "The surveillance under the program is very highly
regimented and justified both internally within the agency and now
externally to the FISA court," he said.

He declined to provide more detail on the orders. That hurts the board's
credibility, said Marc Rotenberg, executive director of the Electronic
Privacy Information Center, an advocacy group. "They have to do something
more than say 'trust us,' " he said. "This goes to the objection that many
people have had about an oversight board based in the executive branch."

Thomas H. Kean, chairman of the 9/11 Commission, said he supported the
legislation to make the board more independent, which includes reporting
twice a year to Congress. "The civil liberties board has got to alert us on
the questions involving our civil liberties," he said. "What hasn't been
done yet is to make sure that it's in the executive branch as a totally
independent agency.