Short title

This Act may be cited as the

9/11 Commission Civil Liberties Board Act

Findings

Congress finds the following: (1)On July 22, 2004 the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) issued a report that included 41 specific recommendations to help prevent future terrorist attacks, including details of a global strategy and government reorganization necessary to implement that strategy. (2)One of the recommendations focused on the protections of civil liberties. Specifically the following recommendation was made: At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.. (3)The report also states that the choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success of a terrorist attack at home. Our History has shown that the insecurity threatens liberty at home. Yet if our liberties are curtailed, we lose the values that we are struggling to defend.. (4)On December 17, 2004, Public Law 108–458, the National Intelligence Reform Act, was signed into law. This law created a civil liberties board that does not have the authority necessary to protect civil liberties. (5)The establishment and adequate funding of a Privacy and Civil Liberties Oversight Board was a crucial recommendation made by the 9/11 Commission. (6)In its Final Report on 9/11 Commission Recommendations, the Commission noted very little urgency and insufficient funding as it relates to the establishment of the Privacy and Civil Liberties Oversight Board. (7)While the President’s budget submission for fiscal year 2006 included $750,000 for the Privacy and Civil Liberties Oversight Board, the President’s budget submission for fiscal year 2007 does not contain a funding line for the Board.

Making the Privacy and Civil Liberties Oversight Board independent

Section 1061(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 is amended by striking within the Executive Office of the President and inserting as an independent agency within the Executive branch.

Requiring all members of the Privacy and Civil Liberties Oversight Board be confirmed by the Senate

Subsection (e) of section 1061 of the Intelligence Reform and Terrorism Prevention Act of 2004 is amended to read as follows:

(e)

Membership

(1)

Members

The Board shall be composed of a full-time chairman and 4 additional members, who shall be appointed by the President, by and with the advice and consent of the Senate. (2)

Qualifications

Members of the Board shall be selected solely on the basis of their professional qualifications, achievements, public stature, expertise in civil liberties and privacy, and relevant experience, and without regard to political affiliation, but in no event shall more than 3 members of the Board be members of the same political party. The President shall, before appointing an individual who is not a member of the same political party as the President consult with the leadership of that party, if any, in the Senate and House of Representatives. (3)

Incompatible office

An individual appointed to the Board may not, while serving on the Board, be an elected official, officer, or employee of the Federal Government, other than in the capacity as a member of the Board. (4)

Term

Each member of the Board shall serve a term of six years, except that— (A)a member appointed to a term of office after the commencement of such term may serve under such appointment only for the remainder of such term; (B)upon the expiration of the term of office of a member, the member shall continue to serve until the member's successor has been appointed and qualified, except that no member may serve under this subparagraph— (i)for more than 60 days when Congress is in session unless a nomination to fill the vacancy shall have been submitted to the Senate; or (ii)after the adjournment sine die of the session of the Senate in which such nomination is submitted; and (C)the members initially appointed under this subsection shall serve terms of two, three, four, five, and six years, respectively, from the effective date of this Act, with the term of each such member to be designated by the President. (5)

Quorum and meetings

The Board shall meet upon the call of the chairman or a majority of its members. Three members of the Board shall constitute a quorum.

Subpoena power for the Privacy and Civil Liberties Oversight Board

Section 1061(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 is amended— (1)so that subparagraph (D) of paragraph (1) reads as follows:

(D)require, by subpoena issued at the direction of a majority of the members of the Board, persons (other than departments, agencies, and elements of the executive branch) to produce any relevant information, documents, reports, answers, records, accounts, papers, and other documentary or testimonial evidence.

; and

(2)so that paragraph (2) reads as follows:

(2)

Enforcement of subpoena

In the case of contumacy or failure to obey a subpoena issued under paragraph (1)(D), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found may issue an order requiring such person to produce the evidence required by such subpoena.

Reporting requirements

(a)

Duties of Board

Paragraph (4) of section 1061(c) of the Intelligence Reform and Terrorism Prevention Act of 2004 is amended to read as follows:

(4)

Reports

(A)

Receipt, review, and submission

(i)

In general

The Board shall— (I)receive and review reports from privacy officers and civil liberties officers described in section 212; and (II)periodically submit, not less than semiannually, reports to the appropriate committees of Congress, including the Committees on the Judiciary of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Government Reform of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives, and to the President.

Such reports shall be in unclassified form to the greatest extent possible, with a classified annex where necessary.

(ii)

Contents

Not less than 2 reports the Board submits each year under clause (i)(II) shall include— (I)a description of the major activities of the Board during the preceding period; (II)information on the findings, conclusions, and recommendations of the Board resulting from its advice and oversight functions under subsection (c); (III)the minority views on any findings, conclusions, and recommendations of the Board resulting from its advice and oversight functions under subsection (c); and (IV)each proposal reviewed by the Board under subsection (c)(1) that the Board advised against implementing, but that notwithstanding such advice, was implemented. (B)

Informing the public

The Board shall— (i)make its reports, including its reports to Congress, available to the public to the greatest extent that is consistent with the protection of classified information and applicable law; and (ii)hold public hearings and otherwise inform the public of its activities, as appropriate and in a manner consistent with the protection of classified information and applicable law.

(b)

Privacy and civil liberties officers

Section 1062 of the Intelligence Reform and Terrorism Prevention Act of 2004 is amended to read as follows:

1062.

Privacy and civil liberties officers

(a)

Designation and functions

The Attorney General, the Secretary of Defense, the Secretary of State, the Secretary of the Treasury, the Secretary of Health and Human Services, the Secretary of Homeland Security, the National Intelligence Director, the Director of the Central Intelligence Agency, any other entity within the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)), and the head of any other department, agency, or element of the executive branch designated by the Privacy and Civil Liberties Oversight Board to be appropriate for coverage under this section shall designate not less than 1 senior officer to— (1)assist the head of such department, agency, or element and other officials of such department, agency, or element in appropriately considering privacy and civil liberties concerns when such officials are proposing, developing, or implementing laws, regulations, policies, procedures, or guidelines related to efforts to protect the Nation against terrorism; (2)periodically investigate and review department, agency, or element actions, policies, procedures, guidelines, and related laws and their implementation to ensure that such department, agency, or element is adequately considering privacy and civil liberties in its actions; (3)ensure that such department, agency, or element has adequate procedures to receive, investigate, respond to, and redress complaints from individuals who allege such department, agency, or element has violated their privacy or civil liberties; and (4)in providing advice on proposals to retain or enhance a particular governmental power the officer shall consider whether such department, agency, or element has established— (A)that the power actually enhances security and the need for the power is balanced with the need to protect privacy and civil liberties; (B)that there is adequate supervision of the use by such department, agency, or element of the power to ensure protection of privacy and civil liberties; and (C)that there are adequate guidelines and oversight to properly confine its use. (b)

Exception to designation authority

(1)

Privacy officers

In any department, agency, or element referred to in subsection (a) or designated by the Board, which has a statutorily created privacy officer, such officer shall perform the functions specified in subsection (a) with respect to privacy. (2)

Civil liberties officers

In any department, agency, or element referred to in subsection (a) or designated by the Board, which has a statutorily created civil liberties officer, such officer shall perform the functions specified in subsection (a) with respect to civil liberties. (c)

Supervision and coordination

Each privacy officer or civil liberties officer described in subsection (a) or (b) shall— (1)report directly to the head of the department, agency, or element concerned; and (2)coordinate their activities with the Inspector General of such department, agency, or element to avoid duplication of effort. (d)

Agency cooperation

The head of each department, agency, or element shall ensure that each privacy officer and civil liberties officer— (1)has the information, material, and resources necessary to fulfill the functions of such officer; (2)is advised of proposed policy changes; (3)is consulted by decisionmakers; and (4)is given access to material and personnel the officer determines to be necessary to carry out the functions of such officer. (e)

Reprisal for making complaint

No action constituting a reprisal, or threat of reprisal, for making a complaint or for disclosing information to a privacy officer or civil liberties officer described in subsection (a) or (b), or to the Privacy and Civil Liberties Oversight Board, that indicates a possible violation of privacy protections or civil liberties in the administration of the programs and operations of the Federal Government relating to efforts to protect the Nation from terrorism shall be taken by any Federal employee in a position to take such action, unless the complaint was made or the information was disclosed with the knowledge that it was false or with willful disregard for its truth or falsity. (f)

Periodic reports

(1)

In general

The privacy officers and civil liberties officers of each department, agency, or element referred to or described in subsection (a) or (b) shall periodically, but not less than quarterly, submit a report on the activities of such officers— (A) (i)to the appropriate committees of Congress, including the Committees on the Judiciary of the Senate and the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Government Reform of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Permanent Select Committee on Intelligence of the House of Representatives; (ii)to the head of such department, agency, or element; and (iii)to the Privacy and Civil Liberties Oversight Board; and (B)which shall be in unclassified form to the greatest extent possible, with a classified annex where necessary. (2)

Contents

Each report submitted under paragraph (1) shall include information on the discharge of each of the functions of the officer concerned, including— (A)information on the number and types of reviews undertaken; (B)the type of advice provided and the response given to such advice; (C)the number and nature of the complaints received by the department, agency, or element concerned for alleged violations; and (D)a summary of the disposition of such complaints, the reviews and inquiries conducted, and the impact of the activities of such officer. (g)

Informing the public

Each privacy officer and civil liberties officer shall— (1)make the reports of such officer, including reports to Congress, available to the public to the greatest extent that is consistent with the protection of classified information and applicable law; and (2)otherwise inform the public of the activities of such officer, as appropriate and in a manner consistent with the protection of classified information and applicable law. (h)

Savings clause

Nothing in this section shall be construed to limit or otherwise supplant any other authorities or responsibilities provided by law to privacy officers or civil liberties officers. (i)

Protections for human research subjects

The Secretary of Homeland Security shall ensure that the Department of Homeland Security complies with the protections for human research subjects, as described in part 46 of title 45, Code of Federal Regulations, or in equivalent regulations as promulgated by such Secretary, with respect to research that is conducted or supported by such Department.

Inclusion in President’s budget submission to Congress

Section 1105(a) of title 31, United States Code, is amended by adding at the end the following new paragraph:

(36)a separate statement of the amount of appropriations requested for the Privacy and Civil Liberties Oversight Board.