Congress Seeks 'Bite' For Privacy Watchdog

By Ellen Nakashima
Washington Post Staff Writer
Tuesday, February 13, 2007

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."

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