The obscure oversight board that President Barack Obama wants to scrutinize the National Security Agency’s secret surveillance system is little known for good reason. The U.S. Privacy and Civil Liberties Oversight Board has operated fitfully during its eight years of low-profile existence, stymied by congressional infighting and, at times, censorship by government lawyers.
The privacy board was to meet Wednesday, its first meeting since revelations that the NSA has been secretly collecting the phone records of millions of Americans. The meeting will be closed to the public.
The board has existed since 2004, first as part of the executive branch, then, after a legislative overhaul that took effect in 2008, as an independent board of presidential appointees reporting to Congress. But hindered by Obama administration delays and then resistance from Republicans in Congress, the new board was not fully functional until May, when its chairman, David Medine, finally was confirmed.
Obama’s sudden leaning on the board as a civil libertarian counterweight to the government’s elaborate secret surveillance program places trust in an organization that is untested and whose authority at times still defers to Congress and government censors.
“They’ve been in startup mode a long time,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project, a bipartisan civil liberties watchdog group. “With all the concerns about the need for a debate on the issue of surveillance, this is a great opportunity for them to get involved.”
It was not clear how much classified information would be discussed at Wednesday’s meeting. As late as April 2012, the board’s incoming chairman did not have a security clearance and the board did not have the classified, secure meeting area that is necessary to review and discuss classified government material.
The board’s five appointees recently got security clearances, said Franklin, who attended the new group’s first two meetings in October and March. “The first thing they can do is push for more disclosure and a more well-rounded picture of the surveillance programs,” she said.
In an interview with television talk show host Charlie Rose, Obama said he wanted the group to spearhead a national conversation not only on the surveillance programs recently disclosed by former NSA contractor Edward Snowden, but also “about the general problem of these big data sets because this is not going to be restricted to government entities.”
The board’s mandate includes privacy as well as national security concerns, so, in theory, it could veer into questions about how Internet companies like Google and Facebook as well as hundreds of other data-mining firms deal with privacy and how government might regulate those entities. But as Franklin and other civil liberties experts said, the board’s role is largely advisory, setting out problems and suggesting possible options.
“They have statutory authority in two main areas,” Franklin said. “One is evaluating whether safeguards on civil liberties are adequate and the other is in transparency — informing the public and ensuring the government is more transparent.”
But there are still limits on the group’s independence when it comes to the public disclosure of classified material. While the board has leeway in scrutinizing classified material and referencing top secret documents, it can only make those materials public if they are first declassified by the government, said Lanny Davis, who was one of the board’s first five members.
“They can say anything they want short of putting out classified information,” said Davis, a former senior counselor to President Bill Clinton who has worked as a consultant, commentator and representative for several foreign governments.
Davis ran into that brick wall in 2007 when the board was preparing a draft of its report for Congress on government national security programs. One passage in the draft described anti-terrorism programs that represented “potentially problematic” intrusions on civil liberties, but it was deleted at the direction of the White House. Bush administration lawyers made more than 200 other revisions in the report, and while the board accepted most of the changes, Davis quit. Going public with his decision, Davis said he was not reacting to censorship of any classified material but instead the board’s structural ties to the executive branch that allowed White House lawyers to heavily edit the report.
“The law as it was then made the board a functional equivalent of White House staff,” Davis said. “Congress corrected that by making the board independent. If they have a problem with classified material, they still can’t release it on their own. But they can go out and have a press conference complaining about it. Before, they had to defer to the White House.”
Congress’ revision of the legal authority that set up the board gave Obama the ability to appoint a new group of appointees when he came into office in January 2009. But Obama did not forward his first nominations until December 2010, and they languished among dozens of other nominations in Congress.
The current board is a mix of civil libertarians and former government lawyers. Medine, the chairman, most recently worked as a Securities and Exchange Commission lawyer. James X. Dempsey is a vice president of public policy with the Center for Democracy and Technology, an Internet civil liberties group. Elisebeth Collins Cook and Rachel Brand both worked as Justice Department lawyers during the Bush administration and are now in private practice. Patricia M. Wald is a former federal judge appointed by President Jimmy Carter.
Three members — Medine, Cook and Brand — have worked as lawyers at WilmerHale, a top legal and lobbying shop in Washington. Medine lobbied for several years for data security groups, including Iron Mountain and the National Association for Information Destruction, a trade association for shredding and other information disposal companies. Brand lobbied for Google, T-Mobile and a pharmaceutical association.
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