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Congress OKs new direction for privacy panel

New legislation approved late last week would make a White House oversight panel into an "independent agency." Is the move enough to appease civil libertarians?

A White House panel charged with flagging privacy and civil liberties foibles in the government's electronic eavesdropping programs may soon be gaining a little more freedom.

Both the U.S. Senate and House of Representatives have approved a 567-page conference report that would change the Privacy and Civil Liberties Oversight Board from a panel within the Executive Office of the President to an "independent agency" within the executive branch.

Just last week, the current vice chairman of the panel, a former Reagan White House attorney, told a congressional committee that the panel was fine as-is. But Lanny Davis, a former Clinton White House special counsel who resigned from his post on the board a few months ago, suggested the current structure of the board allowed for too much meddling from the White House, potentially interfering with its oversight duties. Civil libertarians and privacy advocates have charged much of the same.

The House vote on Friday afternoon in favor of the broader bill, which is designed to implement remaining recommendations of the 9/11 Commission, was 371-40, while the Senate vote on Thursday was 85-8.

The oversight board changes are scheduled to take effect within 180 days of when the bill becomes law. Whether they will make any real dent in complaints about the board's questionable authority remains to be seen.

Tim Sparapani, senior legislative counsel for the American Civil Liberties Union, called the action "an intermediate step to put some bite back into this board."

"It may not be enough to give it real teeth, but it's a ramping up of this process," he said in a telephone interview Monday.

The approved bill would give the board authorization to have access to any documents, including classified ones, from any executive branch agency or department; to request information from state and local governments; and to interview executive branch officials. The board would continue to have five members, but all five would now have to be approved by the Senate after being appointed by the president. (Right now, only the chairman and vice chairman must go through that extra layer.)

The panel would not, however, have direct subpoena power. In order to compel agencies to turn over documents or other relevant answers, the board would have to submit a written request to the U.S. attorney general, asking that official to issue the subpoena.

"You need an independent agency with full subpoena power that stands as part of the executive branch and has ability to prosecute and regulate the executive branch," Sparapani said. "This is a good step along that line, but we'll have to see if this experiment works."

The ACLU plans to continue to push for establishment of an even more powerful "independent privacy commissioner," akin to what Europe and Japan have, Sparapani added.

The broader bill also includes more sweeping investigatory powers, including the ability to issue subpoenas, for the Department of Homeland Security's chief privacy officer, a post that has been dogged in the past for its perceived lack of authority. The measure would also require senior privacy officials to be designated within various other federal agencies, including the Departments of Justice, Defense, State, Treasury and Health and Human Services and the CIA.