At its first open meeting since it was conceived two years ago, the Privacy and Civil Liberties Oversight Board heard more than three hours of tips for future action--and not all of it gentle--from advocacy groups, think tanks and academics of various political stripes.
Of the 10 such representatives who spoke on panels at the meeting, many urged the group to probe more deeply into the constitutional issues surrounding electronic surveillance,and swapping, and programs conducted by the government. Some didn't mince words.
"When our government is torturing innocent people and spying on Americans without a warrant, this board should act--indeed, should have acted long ago,", director of the American Civil Liberties Union's office in Washington, told the panel in her testimony.
Training her gaze on the five presidentially appointed board members, she added: "Clearly you've been fiddling while Rome burns."
The board, borne out of an act of Congress in 2004 based on recommendations by the 9/11 Commission, has been dogged before. 9/11 Commission Chairman Thomas Kean, as well as congressional Democrats and watchdog groups accused the Bush administration of not taking the endeavor seriously and dragging their feet in nominating members and getting the group up and running.
That's because it was not until March 2006 that all of its members, which include partners at high-profile law firms and the chief security officer of General Electric, were confirmed by the U.S. Senate and able to hold their first meeting. Since then, they have held more than a dozen closed-door meetings composed "mainly of phone calls or teleconferences with administration insiders and agencies," by the ACLU's critical characterization.
Some board members implicitly acknowledged that rocky past but sought to reassure the sparsely populated hall that Tuesday afternoon's meeting, which they billed as an "expert's forum," would not be a one-shot deal.
"You should always feel free to raise your comments, your concerns and maybe even an occasional compliment," Chairwoman Carol Dinkins, who served as a deputy attorney general in the Reagan administration's Department of Justice and is now a partner, told an audience of about 40 people at the outset of the meeting. Dinkins is now a partner focusing on environmental and administrative law at the firm Vinson & Elkins.
How much power?
But in an ironic twist, the very group that the participants in Tuesday's meeting hoped to call to action wields less power than critics say it should.
By law, its members serve "at the pleasure" of the president, which means they can be retained or fired at his discretion. Although the body may request documents or interviews with officials, it lacks the power to subpoena such materials that many congressional committees and federal agencies enjoy. The government is free to withhold information if it determines that divulging it would thwart national security or "sensitive law enforcement or counterterrorism operations."
According to published reports, the board wasn't briefed until late last month on the, which has drawn legal challenges from civil-liberties watchdogs who claim that it sweeps up the phone calls and Internet communications of millions of innocent Americans. The program came to light through a New York Times report nearly a year ago.
Some members of Congress have proposed legislation that would beef up the board's powers. But at least one board member downplayed those concerns Tuesday.
"We have had access to anyone we've wanted to have (it) to," said board member Theodore "Ted" Olson, a partner at the firm Gibson, Dunn & Crutcher who focuses on appellate and constitutional law. "We have asked any questions we wanted to ask, to date, and they have been answered."Suggestions and criticisms
The public meeting included no shortage of familiar suggestions from outside panelists--namely, that they believed the president's warrantless-wiretapping program is operating outside of the law and the U.S. Constitution, and must be reined in. But the afternoon brought a relative dearth of specific commitments on that front from the board members.
"Our chief burden as a board is to find the right balance between my own and, I believe, my colleagues' commitment to civil liberties and privacy rights while still giving the government the ability to protect our country, our children and all of us from these forces of evil we all experienced on 9/11," said board member Lanny Davis, a former White House counsel under President Clinton and now a partner at the law firm Orrick in Washington.
During his testimony, Electronic Privacy Information Center Director Marc Rotenberg said he would be interested to hear whether the board agrees with the president's assertion that he has inherent authority to run the surveillance program without a court order. When fellow panelist Michael Ostrolenk of the Liberty Coalition, a civil-liberties activist group, pressed the board members on whether they planned to answer that question, four of the board members remained mum.
Davis, the sole member to speak up, said he would prefer that "we go back to the conservative tradition of checks and balances," but he seemed to suggest that it was more Congress' duty than his own to curb the executive branch's power.
During a question-and-answer session, one audience member asked the board if it could reveal whether it had been briefed on how many Americans have had their phone records or Internet and phone communications monitored by the NSA.
"All that would be appropriate to say is that we did receive a detailed briefing with information of the kind you described," responded Vice Chairman Alan Raul, who served as a White House lawyer during the Reagan administration and is now a partner with a wide-ranging focus at the firm Sidley Austin in Washington.
The audience member pressed the board member further, asking whether the board planned to recommend that such information be made public, just as the government is expected to disclose how many court-ordered wiretaps it completes each year, but Raul deferred again.
"I can't address the substance of the question," he said, adding, "Part of our ability to provide advice within the executive branch is the ability to provide advice confidentially and...to share some private views we have, I think, would undermine our (work)."
Raul's seemingly vague responses all go back to the manner in which Congress designed the board, fellow board member Davis said. "We didn't put ourselves in the office of the president," he said. "If Congress wanted us to be an independent agency, they would've created us as an independent agency."
How the board is supposed to reconcile its oversight duties under that umbrella, Davis added, remains "an open question that none of us up here have quite been able to figure out."