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White House Vets Privacy Report

Oversight Board Gives Administration Passing Marks

The White House played an active role in vetting a new report to Congress from an oversight panel on civil liberties and national security, even as civil libertarians and the former chairmen of the 9/11 commission have faulted the panel for not making a more critical analysis of administration anti-

terror programs.

Critics say the report’s somewhat cursory review of the civil rights impacts of anti-terror programs highlights the problem of placing an oversight board in the executive office of the president, and Congress is considering legislation to strengthen its independence.

But a board official said the White House involvement did not alter the report’s conclusions and that being inside the White House gives the board far greater access to the intelligence professionals who are operating the anti-terror programs than they would have as a free-standing entity.

The Privacy and Civil Liberties Oversight Board was established by Congress in 2004 as part of the response to the 9/11 commission report, which recommended an oversight panel to ensure that civil liberties were not trampled by aggressive anti-terrorism programs. Disputes over funding and the naming of the membership delayed its initiation, and the board did not get up and running until March 2006.

At the end of April the privacy board issued its first annual report, which found no major problems with most of the administration’s post-Sept. 11, 2001, surveillance or intelligence programs. In a cover letter accompanying the report, the board members did express concerns about the FBI’s use of “national security letters,” problems that were detailed by the Justice Department inspector general in March, but the body of the report makes no reference to the problem because the scope of the report was limited to board activities prior to March 1.

The report did find fault with the Pentagon’s Threat and Local Observation Notice database, which the military has acknowledged improperly collected information on anti-war groups, but it also “endorsed the steps that DOD took prior to the Board’s investigation to correct these concerns.”

In a May 8 letter to the privacy board, Lee Hamilton and Thomas Kean — former co-chairmen of the National Commission on Terrorist Attacks Upon the United States — raised a host of questions about the report and the board’s work. “What civil liberties have been specifically protected or enhanced by your actions?” they wrote. “What correction in policies, procedures, or regulations have you achieved?”

Kean and Hamilton argued that the board was mistaken to unilaterally limit its review to the impact of policies on American citizens on U.S. soil, a decision that excluded consideration of the treatment of prisoners being held at Guantanamo Bay, Cuba. “We would urge the board to revisit … the definition of its mission and mandate to include the serous issues raised by the treatment of detainees.”

The two also suggested that the board’s approval of the terrorist surveillance program was too cursory. “Given the considerable public interest in, and inherent sensitivity of, [the National Security Agency surveillance program] … we believe a more detailed public explanation in support of your conclusions is necessary,” they wrote.

An official of the privacy board, who would not permit Roll Call to identify him by name, said he did not take the Hamilton-Kean letter as criticism. “These are the questions that we ask ourselves and that anybody interested in these issues would ask,” he said.

The board official said the board felt that based on its limited resources, it should focus on the primary concern of Congress, which was “how the enhanced use of counterterrorism and national security tools would society would impact the lives of Americans.”

Regarding the NSA surveillance program, the official said, “We spent a lot of time as a board reviewing this. … If one were looking for a model of how to conduct careful circumscribed, audited, justified surveillance, this would be that model.”

Civil libertarians disagree strongly and say the report’s conclusions are indicative of the problems of having an oversight board operating out of the White House.

“This was the coup de grâce that sort of made clear that the [board] is fluff and not substance,” said Tim Sparapani, a legislative counsel with the American Civil Liberties Union. “It cannot, unfortunately, stand in the role for which it was created … to be an independent bulwark against overzealous federal programs and agencies who are spying on Americans.”

Marc Rotenberg, executive director of the Electronic Privacy Information Center, agreed.

“I think structurally this arrangement is flawed,” he said. “That was suspected when it was established, and that has been made clear now with the last two years’ of experience.”

But the board official said that being in the White House actually is an advantage for the board’s influence. “The type of welcome and access to information that the board has received has been terrific,” he said. “We have basically had access to anything we think we could want. We have been both received by and had the opportunity to interact with anybody we wanted, including the people in the intelligence community and the White House.”

He added that, “Those who look to the board to be an outside, independent, arms-length overseer are really trying replace the role of Congress — it is really Congress’ job to provide outside independent oversight.”

The official also said the White House’s involvement in the final report never impinged on the board’s independence. “They provided comments that in some places corrected inaccuracies, [but overall] their comments were relatively light and their suggested edits were really almost universally improvements and helpful corrections. … If the board as a whole or any member of the board had any fundamental problem with any suggested comment or edit, and it was a fundamental point on a matter of great substance, the board would have addressed it.”

Rep. Carolyn Maloney (D-N.Y.) offered legislation in the 109th Congress to re-establish the board as an independent agency within the executive branch, and that proposal has been rolled into H.R. 1, the Democratic leadership bill to implement the remaining 9/11 commission recommendations. The Senate-passed version of the bill would keep the board inside the White House but would give it power to subpoena documents and witnesses.

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