Privacy and Civil Liberties Oversight Board

CONGRESSIONAL RECORD
SENATE
Oct. 8, 2004

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

Mr. DURBIN. Mr. President, the 9/11 Commission recognized that one of the biggest challenges we face in fighting the war on terrorism is protecting civil liberties. The Commission said, "While protecting our homeland, Americans should be mindful of threats to vital personal and civil liberties. This balancing is no easy task, but we must constantly strive to keep it right."

To help keep this balance right, the Commission wisely recommended the creation of a board to ensure that the Government does not violate privacy or civil liberties. Following this recommendation, the National Intelligence Reform Act of 2004 establishes the Privacy and Civil Liberties Oversight Board. I want to commend Senator COLLINS and Senator LIEBERMAN for recognizing the importance of this issue.

The 9/11 Commission has endorsed the Collins-Lieberman Board. Commissioners Slade Gorton and Richard Ben-Veniste told the House Government Reform Committee: "A Board of the kind we recommend can be found in the Collins-Lieberman bill in the Senate."

Some have claimed that establishing this board will tilt the balance between security and liberty too far in favor of liberty. I disagree. As the 9/11 Commission said, "The choice between security and liberty is a false choice." We can be both safe and free.

Throughout American history, in times of war, we have sacrificed liberty in the name of security. Now, we are being tested again. The creation of the Privacy and Civil Liberties Oversight Board sends a clear message: This time will be different. We will protect the lives of the American people, but we will also protect their liberty.

The board created by the Collins-Lieberman resolution is a vast improvement over the President's Board on Safeguarding Americans' Civil Liberties, which the President recently created by Executive order.

The President's board is chaired by the Deputy Attorney General and its members will all be high-ranking Government officials, the vast majority of them political appointees.

This board will not be independent because its members are precisely those officials who need independent civil liberties advice. This is like letting a baseball player call his own balls and strikes.

I asked Commission Chair Tom Kean about this. He said that, in the Commission's view, the civil liberties board should have independent members from outside the Government who can provide a "disinterested perspective."

The Collins-Lieberman Board will provide that "disinterested perspective." The board will be appointed by the President from outside the Government and by the Senate.

The board will have the authority to obtain the information they need to determine whether the Government is violating civil liberties. If someone outside the Government refuses to provide this information, the board would have the power to issue a subpoena to obtain it.

This is common sense. An investigative body must have the power to get the information it needs to conduct an investigation.

It is also common. Countless Federal commissions and boards have subpoena authority. I will name just a few: The National Labor Relations Board, the Equal Employment Opportunity Commission, the Federal Trade Commission, and the Federal Energy Regulatory Commission. The Privacy and Civil Liberties Oversight Board, which has such an important role, should have the same power that so many other Government boards and commissions have.

The Privacy and Civil Liberties Oversight Board will be required to share information about its work with the public. This is a good thing. There should be transparency in Government. The American people have a right to know what their Government is doing.

As Commissioners Gorton and Ben-Veniste told the House Government Reform Committee, "Such a Board should be transparent, making regular reports to Congress and the American public."

Of course, at the same time, we have to protect national security. This bill does that. It requires that information will only be shared with the public, and I quote, "in a manner consistent with the protection of classified information and applicable law."

I want to thank Senator COLLINS and Senator LIEBERMAN for working with me on the structure of the Privacy and Civil Liberties Oversight Board. I offered several amendments to strengthen the Board. Senator COLLINS and Senator LIEBERMAN accepted these amendments, and I thank them for that.

As a result of these amendments: the chairman of the board and the board's executive director will now be full-time. It would very difficult for a part-time Board to function effectively.

Terms for board members will be fixed at 6 years so the President will not be able to fire board members who provide advice the White House doesn't like.

Board members will be required to have expertise in civil liberties and privacy issues.

No more than three of the five board members will be from the same political party, which will ensure the board is bipartisan and independent.

The board will be able to meet upon the call the majority of the board and a majority of the board will constitute a quorum. This will protect the board from being dominated by a chair who is too close to the President.

Board members will be required to testify before Congress if called to do so. This will prevent any administration from trying to shield the disclosure of information by claiming executive privilege for the board.

The board will be required to file semiannual unclassified reports with the appropriate Congressional committees. Therefore, Congress will be fully informed on the board's important work.

In reviewing a government power, the board will be required to consider whether the need for such power is balanced with the need to protect privacy and civil liberties; whether there is adequate supervision of the use by the executive branch of the power to ensure protection of privacy and civil liberties; and whether there are adequate guidelines and oversight to properly confine its use.

This standard of review will provide the board to follow guidelines recommended by the 9/11 Commission as it reviews government power. As the 9/11 Commission said, the board should "ensure that liberty concerns are appropriately considered," and "the burden of proof for retaining a particular governmental power should be on the executive."

These changes will make a strong board even stronger. The Privacy and Civil Liberties Oversight Board will ensure that, as we fight the war on terrorism, we will respect the precious liberties that are the foundation of our society.