NSA Surveillance Leaks Startle Privacy Board Back to Life

A U.S. board created after the Sept. 11 terrorist attacks to ensure government surveillance doesn’t violate citizens’ rights is reviving this week in the same secrecy as the programs it will examine.

The Privacy and Civil Liberties Oversight Board, after not being fully operational since 2007, will have a closed session in Washington tomorrow to discuss the National Security Agency’s collection of telephone and Internet data -- programs exposed by a former NSA contractor in leaks to two newspapers.

The board, which President Barack Obama said he plans to meet with, should determine whether the surveillance programs operate within the law, said Tom Kean, former chairman of the 9/11 Commission that recommended the panel’s creation. Meeting in private runs counter to its purpose, he said.

“Frankly, our idea was that the meetings should be open,” Kean, a former Republican governor of New Jersey, said in an interview. “What they should be worried about is civil liberties and that’s not something they should be keeping secret. That’s something that they should be debating openly.”

The board’s newly confirmed chairman, David Medine, said the closed meeting is necessary to discuss classified material and doesn’t indicate the panel will operate in secrecy.

“We certainly are very much in favor of transparency and expect much of our work to be in the public and be transparent,” Medine said in an interview.

Obama, in an interview with Charlie Rose for broadcast on PBS yesterday, said he plans to meet with the board to help structure “a national conversation” about the NSA programs and broader issues about data collection and privacy. He didn’t discuss timing or other specifics.

Real Test

The review will test the board’s effectiveness, Steven Aftergood, senior research analyst at the Federation of American Scientists, a Washington-based group that provides analysis on security issues, said in an interview.

“Will agencies respond -- as they are obliged to do -- to its inquiries?” asked Aftergood, who directs the Project on Government Secrecy, which works to reduce the scope of secret information. “Will it be able to derive useful insights that can either correct surveillance policy, or else assure the public that the policy is sound?”

Created in 2004 to help formulate civil liberties policies, the board disbanded after President George W. Bush’s administration heavily edited its first report to Congress.

A 2007 law reconstituted it as an independent agency within the executive branch and required all five members to be confirmed by the Senate. While members nominated by Obama were confirmed, the board didn’t have a chairman for six years until Medine was sworn in May 29 after being confirmed, 53-45, in a party-line vote. Obama had nominated him in 2011.

NSA Programs

One week later, the U.K.’s Guardian newspaper and the Washington Post published disclosures by NSA contractor Edward Snowden that the government was secretly collecting the telephone records of millions of U.S. residents and monitoring Internet activity of foreigners believed to be plotting terrorist attacks.

“Let’s look seriously at how deep the intrusions are, and are they doing things that they shouldn’t be doing,” Kean said. “The most important thing they should be doing for programs that are already in existence is bringing things out into the light.”

The five-member board lacks subpoena power, is still hiring staff and doesn’t yet have permanent offices. It will meet in the same space the 9/11 Commission used in Washington.

“The board is in a position to address whether proper consideration has been given to privacy and civil liberties concerns,” Medine said. “We don’t have to rely on what’s been reported in the press.”

Political Cover

Medine has held various government jobs, including as a former associate director of the Federal Trade Commission, and also was a partner at the WilmerHale law firm in Washington. Republican senators opposed his nomination, with Iowa’s Charles Grassley saying Medine was “polarizing” and didn’t provide clear answers about his views on national security.

Thirteen senators, including Democrat Tom Udall of New Mexico and Republican Lisa Murkowski of Alaska, sent the board a letter June 12 asking that it make investigating the surveillance programs “an urgent priority” and release an unclassified report on the findings.

Jonathan Turley, a constitutional-law professor at The George Washington University Law School, said the board shouldn’t hold closed meetings and doubts it will be effective.

“The board has always been treated with a great deal of suspicion,” Turley said in an interview. “This is a town that is infamous for creating boards and commissions to create cover for the political establishment.”

No Penalties

The 2007 law authorizes the board to “have access” to information from federal agencies, including classified data, and interview federal officials, although there are no penalties if agencies or official don’t cooperate.

While lacking subpoena power, the board can request the U.S. Attorney General subpoena non-governmental “persons” for information, according to the law.

“If it takes more than an entire first term to actually get the board together, I think that’s pretty clear evidence that it’s not a priority” of the Obama administration, Mark Rumold, a staff attorney with the San Francisco-based Electronic Frontier Foundation that works for digital rights, said in an interview.

There’s no indication the board will have difficulty getting access to information about the programs and the administration has cooperated so far, Medine said.

Board members, who have the highest security clearances, were given a classified briefing June 11 by officials from the NSA, Justice Department, Office of the Director of National Intelligence and Federal Bureau of Investigation, Medine said.

Independent View

The board’s other members are Rachel Brand, a lawyer with the U.S. Chamber of Commerce who served as an associate counsel to Bush; Patricia Wald, a former federal judge appointed by Democratic President Jimmy Carter; Elisebeth Cook, a WilmerHale lawyer; and James Dempsey, vice president for public policy at the Washington-based Center for Democracy and Technology.

Cook donated to Obama’s rival in the last election, Republican Mitt Romney, according to contributions listed on the Federal Election Commission’s website, and Dempsey has donated to Democrats including Obama.

Medine said the board will “express an independent, bipartisan view of these programs,” although he didn’t know when or if a public report will be issued.

“We’ve begun a dialogue with the agencies and we’re open-minded about the programs and we’re going to diligently look into them,” he said. “The board certainly aims to be as transparent as possible and will make the best effort to have public meetings and public responses as we move forward.”

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