- The Washington Times - Sunday, December 1, 2013

A small federal panel that oversees privacy issues has been catapulted from a bureaucratic backwater into the political maelstrom roiled by leaks about the National Security Agency’s domestic snooping.

For most of the nine years since President George W. Bush signed the legislation creating it, the Privacy and Civil Liberties Oversight Board did not have any members, let alone an office or staff.

It took 510 days — nearly 18 months ending in May — for the Senate to confirm the chairman, former Federal Trade Commission official David Medine.

But within a week of the full five-member board’s meeting that month — the first in almost six years — newspapers published details about the NSA’s domestic data collection programs and documents leaked by former NSA contractor Edward Snowden.

“The first Snowden leak happened during my second full week [as chairman],” Mr. Medine said.

The following week, the board met with President Obama in the White House Situation Room. “The timing made things, let’s say, interesting,” the chairman said.

Over the summer, in the face of growing public skepticism about the utility and legality of the NSA programs, Mr. Obama turned to the privacy board to help restore Americans’ faith in the federal government’s most secretive agencies. He made an inquiry by the board a key step in responding to the Snowden leaks.

“It’s not enough for me, as president, to have confidence in these programs,” Mr. Obama said Aug. 9, announcing the board’s inquiry. “The American people need to have confidence in them as well.”

An independent agency

Created in 2004 as a recommendation of the 9/11 Commission, the privacy board was reconstituted three years later in a legislative reform package.

Mr. Medine said the board is “working diligently” on a study of the NSA programs. The panel’s members, who all have top-secret clearances, have been briefed in detail on the agency’s data-gathering and surveillance activities and have visited NSA headquarters at Fort Meade in Maryland, he said.

The panel also has held public hearings where members questioned intelligence agency lawyers and privacy advocates about the programs. Board members also have solicited public input at public meetings and via the Internet.

“We are preparing a report on these [two NSA] programs and possible reforms to the Foreign Intelligence Surveillance Court,” Mr. Medine said, referring to the secret tribunal that authorizes NSA collection of Americans’ data.

He declined to give a date for the report’s completion but said he “wouldn’t deny” aiming to deliver it by year’s end. Mr. Medine said the board’s report would include recommendations, some of which might require legislation to implement.

Several legislative proposals are at various stages of development in both chambers of Congress — some bills backed by critics of the NSA’s data-gathering, others by supporters of it. None shows any sign of getting to the floor of either chamber this year.

Separately, Mr. Obama has convened a small group of former intelligence officials and privacy lawyers — a review group on technology, communication and surveillance — to look into “big picture” issues raised by the Snowden revelations.

The president has said White House staff members also are considering options.

“What we bring to the table is our independence,” said Mr. Medine, touting the benefits of the board’s latest organizational iteration to distinguish its contribution from other voices in the reform debate.

The board’s status as an independent agency with five Senate-confirmed members, he said, means “we can develop legislative and policy proposals and publish them, without prior review by” White House staff in the Executive Office of the President or Office of Management and Budget.

Independence is key, Mr. Medine said, because the earlier version of the board essentially collapsed in May 2007 after one of its members quit, saying White House staff had censored the its report.

‘No better than White House staff’

In the nine years since the Privacy and Civil Liberties Oversight Board’s genesis, there has been “an unprecedented expansion of government power with little public knowledge, little public debate and no public pushback,” said former Rep. Lee Hamilton, co-chairman of the 9/11 Commission, which recommended the board’s formation.

“We called for a powerful, independent body to advocate on behalf of privacy and civil liberties within the government,” Mr. Hamilton said.

The Indiana Democrat recalled how, in the aftermath of the 9/11 attacks, the federal government set up more departments and agencies, such as the Department of Homeland Security and the National Counterterrorism Center, as well as state- and city-based counterterrorism fusion centers for local law enforcement.

“All kinds of new [government] activities, a huge increase in government spending and many, many suggestions about ways to expand government authorities,” Mr. Hamilton said, adding that the board is needed “to provide necessary pushback” to that tendency.

To ensure the board’s authority and independence, the commission recommended that it report directly to the president, he said.

Legislative horse-trading and partisan bickering delayed the intelligence reform bill that set up the board and implemented many of the commission’s other recommendations. They also slowed the politically delicate process of choosing the board’s members, and it was 2006 before the panel was in place.

The 2004 Intelligence Reform and Terrorism Prevention Act put the board inside the Executive Office of the President, described by the Congressional Research Service as “an enclave of agencies immediately serving the president,” such as the National Security Council.

Putting the board there was a huge mistake, said lawyer Lanny J. Davis, a Democrat who was one of the board’s first five members.

“We were treated no better than White House staff,” Mr. Davis said. “We couldn’t even put out a press release without getting it cleared.”

In 2006, board members looked into the NSA’s warrantless domestic data collection and surveillance activities, which The New York Times had exposed.

Mr. Davis said he observed intelligence analysts exercise great, sometimes excessive, care in protecting Americans’ privacy.

“I saw one young man stop what he was doing. I watched him stop when he found out there was an American involved,” he said, adding that the analyst referred the issue to his supervisor for review. Mr. Davis declined to discuss further details, which he said are classified.

“There was no one at the NSA intentionally trying to violate the Fourth Amendment,” he said.

A reconstituted panel

Mr. Davis said the Terrorist Surveillance Program, as the Bush administration dubbed it, was similar to the programs Mr. Snowden exposed in June, though the legal basis was different.

The Bush-era program was not based on statutory authority. Instead, officials said, the government’s authority for warrantless surveillance of Americans derived from the president’s powers as commander in chief under Article 2 of the Constitution.

Mr. Davis said he regarded the program as “blatantly illegal and unconstitutional before Congress made the necessary statutory changes and updates” to the Patriot Act and the Foreign Intelligence Surveillance Act.

But when the board produced its first report in 2007, its criticism of the legal basis for the program was cut out.

“White House staff told me: ‘We edit you,’” Mr. Davis said.

So he quit — very publicly.

Mr. Davis’ resignation highlighted criticism that the board lacked independence, said Steven Aftergood, a government transparency analyst for the Federation of American Scientists.

“When you are in the Executive Office, you are taken to be speaking directly for the president,” Mr. Aftergood said. “Your public statements are subject to very tight supervision and control.”

According to a Congressional Research Service account of the board’s history, critics charged that it “appeared to be a presidential appendage, devoid of the capability to exercise independent judgment and assessment or to provide impartial findings.”

As a result, when Congress in 2007 passed legislation designed to implement the unfulfilled recommendations of the 9/11 Commission, it included a reset of the Privacy and Civil Liberties Oversight Board.

Under the 2007 law, the board became an independent agency with all five members, rather than just the chairman and vice chairman, confirmed by the Senate.

Then nothing much happened for four years.

“The White House, under both President Bush and President Obama, took its sweet time,” Mr. Aftergood said.

The Bush administration never nominated anyone to the reset board, and Mr. Obama took two years to make his first nomination. By the end of 2011, he had nominated all four members and the chairman.

In August 2012, the four members were confirmed but were unable to start work without a chairman. Mr. Medine was re-nominated in Congress this year, and his 510-day wait for confirmation ended in May.

• Shaun Waterman can be reached at swaterman@washingtontimes.com.

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