[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
PRIVACY IN THE HANDS OF GOVERNMENT: THE PRIVACY AND CIVIL LIBERTIES
OVERSIGHT BOARD AND THE PRIVACY OFFICER FOR THE U.S. DEPARTMENT OF
HOMELAND SECURITY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 24, 2007
__________
Serial No. 110-142
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
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JULY 24, 2007
OPENING STATEMENT
Page
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Ranking Member, Subcommittee on Commercial
and Administrative Law......................................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Member, Subcommittee on Commercial
and Administrative Law, and Chairman, Committee on the
Judiciary...................................................... 4
WITNESSES
The Honorable Alan Charles Raul, Esq., Privacy and Civil
Liberties Oversight Board, The White House, Washington, DC
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Lanny J. Davis, Esq., Orrick, Herrington & Sutcliffe, LLP,
Washington, DC
Oral Testimony................................................. 33
Hugo Teufel III, Esq., U.S. Department of Homeland Security,
Washington, DC
Oral Testimony................................................. 34
Prepared Statement............................................. 36
Ms. Linda Koontz, U.S. Government Accountability Office,
Washington, DC
Oral Testimony................................................. 54
Prepared Statement............................................. 56
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan,
Chairman, Committee on the Judiciary, and Member, Subcommittee
on Commercial and Administrative Law........................... 6
Article from The Washington Post, dated November 28, 2006,
``Justice Dept. to Examine Its Use of NSA Wiretaps; Review
Won't Address Program's Legality,'' submitted by the Honorable
Christopher B. Cannon, a Representative in Congress from the
State of Utah, and Ranking Member, Subcommittee on Commercial
and Administrative Law......................................... 13
Article from Salon.com, dated July 23, 2007, ``Bush's torture ban
is full of loopholes,'' submitted by the Honorable John
Conyers, Jr., a Representative in Congress from the State of
Michigan, Chairman, Committee on the Judiciary, and Member,
Subcommittee on Commercial and Administrative Law.............. 94
APPENDIX
Material Submitted for the Hearing Record
Redline version of the Privacy and Civil Liberties Oversight
Board, 2007 Report to Congress with edits by The White House,
submitted by the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California, and Chairwoman,
Subcommittee on Commercial and Administrative Law.............. 101
Answers to Post-Hearing Questions posed by the Honorable Linda T.
Sanchez, a Representative in Congress from the State of
California, and Chairwoman, Subcommittee on Commercial and
Administrative Law to the Honorable Alan Charles Raul, Esq.,
Privacy and Civil Liberties Oversight Board, The White House,
Washington, DC................................................. 145
Answers to Post-Hearing Questions posed by the Honorable Linda T.
Sanchez, a Representative in Congress from the State of
California, and Chairwoman, Subcommittee on Commercial and
Administrative Law to the Honorable Hugo Teufel III, Esq., U.S.
Department of Homeland Security................................ 153
Answers to Post-Hearing Questions posed by the Honorable Linda T.
Sanchez, a Representative in Congress from the State of
California, and Chairwoman, Subcommittee on Commercial and
Administrative Law to Ms. Linda Koontz, U.S. Government
Accountability Office.......................................... 184
Privacy and Civil Liberties Oversight Board, 2007 Report to
Congress, submitted by the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California, and
Chairwoman, Subcommittee on Commercial and Administrative Law.. 190
PRIVACY IN THE HANDS OF GOVERNMENT: THE PRIVACY AND CIVIL LIBERTIES
OVERSIGHT BOARD AND THE PRIVACY OFFICER FOR THE U.S. DEPARTMENT OF
HOMELAND SECURITY
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TUESDAY, JULY 24, 2007
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:50 p.m., in
Room 2237, Rayburn House Office Building, the Honorable Linda
Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Sanchez, Conyers, Watt, Cannon,
Feeney, and Franks.
Staff present: Susan Jensen-Lachmann, Majority Counsel;
Stewart Jeffries, Minority Counsel; and Adam Russell, Majority
Professional Staff Member.
Ms. Sanchez. This hearing of the Committee on the
Judiciary, Subcommittee on Commercial and Administrative Law
will now come to order.
And I will now recognize myself for a short opening
statement.
Since the September 11 terrorist attacks, Congress has been
challenged with protecting individual liberties while working
to keep our Nation secure. Unfortunately, and all too often,
security and liberty have been seen as competing interests, and
in this competition, the right to privacy has tended to be the
first victim.
I do not believe that the two are necessarily in conflict.
With hard work, we can achieve both goals. In fact, it is
imperative to our way of life that we do so.
The Subcommittee on Commercial and Administrative Law has
played a major role with respect to protecting personal privacy
and civil liberties in this era of heightened government
authority over the years. It is with that in mind that the
Subcommittee is holding a hearing to review the work and
performance of the Privacy and Civil Liberties Oversight Board
and the Department of Homeland Security's privacy officer.
As part of our ongoing interest in privacy issues, the
Subcommittee has participated in the effort to create the
Privacy and Civil Liberties Oversight Board. As we all know,
the board was established in 2004 in direct response to the 9/
11 Commission's recommendation that there be an entity within
the executive branch to oversee the government's commitment to
protecting our privacy and defending our civil liberties.
Recently, there has been increased criticism that the final
formulation of the board fell far short of expectations. We
hope those issues will be addressed during today's hearing.
The Subcommittee was also instrumental in establishing the
first statutorily created privacy office in a Federal agency,
namely the Department of Homeland Security, and spearheaded the
creation of a privacy office in the Justice Department with
similar responsibility.
At this very moment, a Conference Committee tapped with
resolving the differences between House and Senate legislation
that would substantially increase the powers and
responsibilities of both the DHS privacy office and the board
has nearly completed its work.
Further, in keeping with our oversight duties, we have
conducted several hearings in the past two Congresses as well
as requested a GAO study of the DHS privacy office which will
be the subject of at least part of today's hearing.
Accordingly, the testimony of all of our witnesses is
particularly timely.
We are very pleased to have Hugo Teufel, the Department of
Homeland Security's current chief privacy officer, with us
today, as well as Linda Koontz, director of information
management issues on behalf of the GAO, which has recently
issued a report on Mr. Teufel's office.
We expect our witnesses, Lanny Davis, a former member of
the Privacy and Civil Liberties Oversight Board, and Alan
Charles Raul, vice chair of the board, to help enlighten us
about the board and how we can improve it.
I want to thank all of the witnesses for coming today and
for your patience in terms of the votes that we just had to
complete, and I look forward to hearing your testimony.
At this time, I would like to recognize my colleague, Mr.
Cannon, the distinguished Ranking Member of the Subcommittee,
for his opening remarks.
Mr. Cannon. Thank you, Madam Chair.
Let me begin this hearing, as I have in the past, with an
observation written 220 years ago by Alexander Hamilton, one of
our founding fathers. In ``Federalist No. 8,'' he wrote,
``Safety from external danger is the most powerful director of
national conduct. Even the ardent love of liberty will, after a
time, give way to its dictates.
``The violent destruction of life and property incident to
war, the continual effort and alarm attendant on a state of
continual danger will compel nations most attached to liberty
to resort for repose and security to institutions which have a
tendency to destroy the civil and political rights. To be more
safe, they at length become willing to run the risk of being
less free.''
Mr. Davis and I were just talking in advance of this
hearing about the fact that this is one of those areas where
the left and right sort of meet, and we do so because of that
principle enunciated by Mr. Hamilton. In this post-9/11 world,
it is not an easy task to balance the competing goals of
keeping our Nation secure while at the same time protecting the
privacy rights of our Nation's citizens.
When I was Chair of the Subcommittee, the protection of
personal information in the hands of the Federal Government was
a top priority, and I am proud of our role in protecting
personal privacy and civil liberties.
These accomplishments included the establishment of the
first statutorily created privacy office in a Federal agency at
the Department of Homeland Security and the mandate that the
Department of Justice designate a senior official with primary
responsibility for privacy policy included in the Department of
Justice Reauthorization Act of 2005.
We also held a hearing on the 9/11 Commission's privacy-
related recommendations and a hearing on the respective roles
that the Federal Government and information resellers have with
respect to personal information collected in commercial
databases. In the past, the GAO has found that the Federal
agencies' compliance with the Privacy Act and other
requirements is ``uneven.''
Today's hearing provides us an opportunity to revisit some
of these issues. We will hear from the GAO which has completed
a study of the DHS privacy office at my request along with that
of former Ranking Member Watt, current Subcommittee Chairman
Nadler, and former Constitution Subcommittee Chairman Chabot.
I am pleased that the GAO found that the privacy office has
made significant progress in carrying out its statutory
responsibilities. Of course, as with any agency, there is
always room for improvement. In this case, GAO found that the
privacy office could provide its reports in a more timely
manner.
I am pleased, however, to see the privacy office has
accepted a number of GAO's recommendations, and I look forward
to hearing about how they can continue to improve their
performance.
Secondly, we will hear from our current and former members
of the Privacy and Civil Liberties Board, which was created in
response to the 9/11 Commission's report. Recently, the board
came out with its first annual report detailing its
governmentwide efforts to advise and provide oversight with
respect to privacy issues. Unfortunately, this is likely to be
the last of such reports.
Currently, the House and Senate are in conference
negotiations over a bill that would take the Privacy and Civil
Liberties Board out of its current home in the White House and
set it up as an independent body in the executive branch with
subpoena power.
While an independent board might have its merits, so too
does a board that is located in the White House. As it is
currently constructed, the board has direct access to high-
ranking White House officials as well as the attorney general,
the secretary of homeland security and the director of national
intelligence. Whether they will continue to have access if they
are moved out of the White House is another matter.
Had the majority waited to conduct oversight before
legislating this area, the results of that legislation might
have been different. As it stands, we are having our first
oversight on the board 6 months after the House voted to
dismantle it. That strikes me as odd.
I am also pleased that we have a former board member here,
Mr. Lanny Davis. As I understand it, Mr. Davis resigned from
the board because of what he viewed as an overintrusive White
House review process of the board's report. However, I have a
copy of the redlined report from The Washington Post, and the
vast majority of the changes are typographical or stylistic in
nature.
In addition, I would note that Mr. Davis signed on the
final version of the report, so I look forward to finding out
what he thought was so objectionable about it. And knowing Mr.
Davis, I am sure it will come to us in the most articulate
manner possible.
With that said, I appreciate the Chair's interest in this
matter, and I am glad that we will continue to conduct vigorous
oversight of privacy in the hands of government.
I thank you, Madam Chair. I yield back.
Ms. Sanchez. I thank the gentleman.
And I would like to at this time recognize Mr. Conyers, a
distinguished Member of the Subcommittee and the Chairman of
the Committee on the Judiciary.
Mr. Conyers?
Mr. Conyers. Thank you, Chairwoman Sanchez.
I am happy to be with you again today, because this
Committee, which was Subcommittee number five, turns out to be
the most active in the 110th Congress.
I am also glad that Chris Cannon is still on the Committee
and is following these issues as carefully as he always has,
and, of course, Tom Feeney has become a very active Member of
the Committee.
Actually, I had a quotation that started off: More than 200
years ago, Alexander Hamilton warned----
Mr. Cannon. If the gentleman would yield, great minds are
on the same track. I hope that ours are on the track that
Alexander Hamilton's was on. That would be good.
Mr. Conyers. Yes. Well, if you include all three great
minds, this is a wonderful way to start our hearing.
But it grabbed me the same way you felt compelled to recite
it here, Chris Cannon, because this could have been written in
the 21st century without changing anything. ``To be more safe,
they at length become willing to run the risk of being less
free.''
And that is the balance we find ourselves caught in in this
post-9/11 circumstance. But in this environment, I am worried
that our liberties have come under attack by our own
government, much like Alexander Hamilton feared.
It seems as if each day we learn of a new law enforcement
initiative or antiterrorism program challenging our private
rights and civil liberties, and it gives this Subcommittee an
awesome responsibility in terms of what our jurisdiction is,
and I am so pleased that the Chairperson thought that we should
do oversight at this point in time.
Much of our victory against those who oppose us will come
when we advance the American values on which our Nation was
founded. We must serve as a leader in promoting freedom,
liberty and democracy. In the eyes of many in the world, this
is no longer the case, and so I come here with a concern about
warrantless wiretaps and illegal surveillance, and we haven't
been able even to find out the legal rationale, much less brief
the Members of this Subcommittee on what we were doing.
The denial of habeus corpus rights to individuals deemed to
be enemy combatants: This Subcommittee recently held hearings--
no, it was the Constitution Subcommittee--to examine the
detention policy of our government, and the findings were
troubling.
It is clear that many of the people whom we were told were
the worst of the worst have never been evaluated or charged.
Individuals who our own government acknowledges are not
``terrorists'' and are not a threat are nonetheless still held
in custody.
The rampant use of profiling, be it ethnic or racial or
religious: Passengers have been denied the right to fly on
aircraft. Religious institutions have been subjected to FBI
surveillance. Justice Department statistics show that routine
automobile traffic stops and their outcomes are frequently
connected to the race of the driver.
The Guantanamo tragedy: These include the use of what has
been euphemistically referred to as harsh interrogation
techniques against prisoners detained by the Defense
Department, the imprisonment of hundreds of individuals for
years at Guantanamo without meaningful due process as to the
reasons or the basis for their captivity, restricting these
detainees from having meaningful access to counsel.
And these abuses have been mitigated, except that Friday
the President of the United States issued an executive order
qualifying what our agreement in terms of lightening up on some
of these very obvious techniques that violate our treaty
obligations and our sense of decency.
We have other issues that we need to talk about. I will
leave them to be included in my statement in the record, and I
notice the presence of Mr. Lanny Davis, and I think it is very
important that he be here for this hearing, and I welcome the
other witnesses as well.
And I thank the gentlelady for her indulgence.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Commercial and Administrative
Law
Ms. Sanchez. I thank the gentleman for his statement.
Mr. Cannon. Madam Chair, may I ask unanimous consent to
include in the record at this point a story from The Washington
Post dated November 28, 2006, regarding the Department of
Justice inspector general announcing an examination of NSA
wiretaps? It is an interesting article because it quotes Mr.
Davis extensively, and I will leave it for the record, except
to say that he was pleasantly surprised.
Just one quote: ``I am astonished at the extent to which
they are all concerned about the legal and civil liberties and
privacy implications of what they are doing,'' Davis said. And
he ties that back to the prior Administration. So this really
is an area that does transcend partisan politics.
And so, I would ask unanimous consent that that be included
in the record.
Ms. Sanchez. Without objection, so ordered.
[The article follows:]
Ms. Sanchez. And without objection, other Members' opening
statements will be included in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing at any point.
I am now pleased to introduce the witnesses for today's
hearing.
Our first witness is Hugo Teufel, chief privacy officer of
the U.S. Department of Homeland Security. Mr. Teufel was
appointed chief privacy officer by Secretary Chertoff on July
23, 2006, and has primary responsibility for privacy policy at
the Department of Homeland Security. He also serves as the
department's chief Freedom of Information Act officer.
Our second witness is Linda Koontz, who is the director of
GAO's information and management issues division. In that
capacity, she is responsible for issues regarding the
collection, use and dissemination of government information.
Ms. Koontz has led GAO's investigations into the government's
data-mining activities as well as E-Government Initiatives. She
is also board member of the Association for Information and
Image Management Standards.
Our third witness is Lanny Davis. Mr. Davis is a partner at
the firm of Orrick, Harrington & Sutcliffe, LLP, and advises
clients on a wide range of legal and governmental issues. In
June 2005, President Bush appointed Mr. Davis to serve on the
Privacy and Civil Liberties Oversight Board, and on May 14,
2007, he resigned from the board. Mr. Davis served as special
counsel to the President during the Clinton administration.
And our final witness is Alan Charles Raul, vice chairman
of the Privacy and Civil Liberties Oversight Board. Appointed
by President Bush to the board, Mr. Raul was confirmed by the
Senate on February 17 of 2006 and also served in the White
House as associate counsel to the President and general counsel
to the Office of Management and Budget under President Reagan
and as general counsel of the U.S. Department of Agriculture
under President George H.W. Bush.
I want to thank you all for your willingness to participate
in today's hearing.
Without objection, your written statements will be placed
in their entirety into the record, and we would ask that you
please limit your oral remarks to 5 minutes.
You will note that we have a lighting system that starts at
the beginning of your time with a green light. After 4 minutes,
it will turn orange, which is a warning to you that you have 1
minute to wrap up your oral testimony. When the light turns
red, that is an indication that your time has expired. If you
are mid-sentence, we would ask that you just finish your
thought and wrap up your testimony in that way so that each
witness will have an opportunity to give their testimony.
After each witness has presented his or her testimony,
Subcommittee Members will be permitted to ask questions subject
to a 5-minute limit.
Okay. We are going to switch the order of the witnesses, as
I am noticing the seating order. So we are actually going to
begin with Mr. Raul.
Mr. Raul, will you please begin your testimony?
TESTIMONY OF ALAN CHARLES RAUL, ESQ., PRIVACY AND CIVIL
LIBERTIES OVERSIGHT BOARD, THE WHITE HOUSE, WASHINGTON, DC
Mr. Raul. Okay. Thank you, Chairman Sanchez, Ranking Member
Cannon, Chairman Conyers, Mr. Feeney, and other Members of the
Subcommittee.
On behalf of Chairman Carol Dinkins and members Ted Olson
and Frank Taylor, I want to thank you for the opportunity to
testify this afternoon regarding the Privacy and Civil
Liberties Oversight Board.
The board recently discussed its mission, activities, and
accomplishments in its first annual report to Congress issued
in April, and it is available on the board's Web site at
www.privacyboard.gov.
I appreciate the Subcommittee's interest in the board and
its mission.
Before discussing some of the board's activities,
accomplishments and plans for the year ahead, I believe it is
important to address the legislation currently pending in both
Houses of Congress that would dramatically affect the board's
future, as Mr. Cannon indicated. It is significant that the
pending legislation was passed by both Houses without any
hearing or testimony on the subject of the board's operations.
I should note, however, that I would like to correct a
statement in my written testimony that no relevant information
was requested of the board. There have, in fact, been a number
of informal meetings with Members and staff regarding the
board's operations during its existence.
In any event, I respectfully submit that Congress would
have been well-served to hold formal hearings before adopting
significant legislative changes, such as the ones currently
proposed and in the conference committee.
While the request for today's testimony did not mention or
arise in the context of the pending legislation, I will seek to
provide some perspective on this subject. I will also discuss a
number of the board's principal activities in the past 16
months, specifically our review of the terrorist surveillance
program conducted by the NSA, both before and after the FISA
court orders authorizing the program, and the FBI's serious
mishandling of that agency's authority to issue national
security letters, or NSLs.
While we found the NSA compliance procedures to be highly
regimented and well-controlled, we were dismayed at the FBI's
lack of adequate compliance procedures to assure that NSLs were
issued and used in accordance with legal requirements.
As you know, Congress created the board as part of the
Intelligence Reform and Terrorism Prevention Act of 2004, which
placed it in the Executive Office of the President. The board's
mandate is to provide advice and oversight to help ensure that
privacy and civil liberties are appropriately considered in the
development and implementation of laws, regulations and
policies related to the executive branch's efforts to protect
the Nation against terrorists.
The board is, of course, fully aware that both the House of
Representatives and the Senate have passed separate legislation
that, if enacted in substantially the form of the House bill,
would drastically alter the present construct of the board. In
fact, whether intended or not, if so enacted, the changes would
result in the termination of the present board, elimination of
the current staff and closure of the existing office.
The House bill H.R. 1 would establish the board as a new
independent entity with subpoena authority. In effect, the
House bill would create an institution potentially resembling
certain data protection authorities found within the European
Union member countries; namely, independent privacy czars that
are effectively disconnected from the policymaking and
implementing processes in the executive branch and are thus
able to second-guess policy without necessarily understanding
the consequences or alternatives.
This is potentially unwise for a number of reasons. I
believe removing the board from the Executive Office of the
President would deprive the board of some of its greatest
assets and tools, namely, the access, influence and authority
that comes from working directly in the Executive Office for
the President. The board has, in fact, benefited from
unparalleled access to the relevant policymakers and program
managers.
Given the ongoing need for vigilance regarding privacy and
civil liberties in the war against terrorism, it would be
constitutionally and democratically preferable, in my opinion,
for Congress to take the lead in providing fully independent
oversight of the executive branch rather than subcontracting
out this fundamental role to a free-floating body. Congress's
independent oversight of these crucial and delicate national
security policy matters should not be delegated to an
unaccountable, independent agency.
Turning to the accomplishments during the board's existence
and the year ahead, our first annual report to Congress noted
in considerable detail what the board has been doing since our
first meeting in March of 2006.
We have undertaken a substantive review of existing
programs and policies, including the NSA surveillance program,
Terrorist Finance Tracking Program, the Department of Defense's
Counterintelligence Field Activities and other programs,
including the Watch List Memorandum of Understanding regarding
the traveler redress program for individuals who find that they
are on the no-fly or selectee list, and we have been integrated
into the implementation and drafting of the information-sharing
guidelines.
With that, my time is up, and I will look forward to
answering any questions that the Committee may have.
[The prepared statement of Mr. Raul follows:]
Prepared Statement of Alan Charles Raul, Esq.
Ms. Sanchez. Thank you, Mr. Raul. We appreciate your
testimony.
At this time, we would like to hear from Mr. Davis.
Mr. Davis, you may begin your testimony.
TESTIMONY OF LANNY J. DAVIS, ESQ., ORRICK, HERRINGTON &
SUTCLIFFE, LLP, WASHINGTON, DC
Mr. Davis. Thank you, Madam Chairwoman and Mr. Feeney.
I would like to say first to Mr. Conyers, somebody who has
been a political hero of mine since I was much, much younger
and during the Clinton days was especially heroic, and it is
nice to see you, sir.
And to Congressman Cannon, proving the words of Alexander
Hamilton in the congressman's opening remarks that there are
occasions where left and right not only come together but even
in adversity become friends. And I appreciate it, Congressman
Cannon, even when we sometimes disagreed on television. So nice
to see you, sir.
And to directly respond to your comments about my
resignation, first of all, my colleague, Alan Raul, the staff
of the Privacy Board on which I served and to President Bush
who appointed me and especially to Fred Fielding, the White
House counsel, I only have memories of honor and legitimate
disagreement that led to my resignation, no suggestion
whatsoever of bad faith or even partisan motives that led to
our disagreement.
The reason that I resigned was finally reaching the
conclusion that the construct of the board was simply a square
peg in a round hole. Congress tried to compromise between an
independent board that would have oversight and a board within
the White House that would have to have oversight of the very
institution within which it resided. And while we all saw a
contradiction and even a tension, as members of the board, we
all thought we could work that out. And I thought that to a
great extent we did have access, we were treated very well, and
we were listened to. And I only have great memories of my
service.
What led to my final conclusion--and it was reluctant, and
it was painful--was that it simply was not possible to have
independent oversight while being treated as if we were a part
of the White House staff.
And the report to Congress led me to the conclusion that
even if it were so, Congressman Cannon, that the red lines were
only typographical errors and technical corrections--and that
is not the case--the White House assumed that it had a right to
take a report of our body, which was supposed to, under the
statute, issue an annual report, edit it, review it, put it
through OMG, circulate it, and send it back to us 2 days before
submission with extensive redlining without even telling us
that that was going to happen.
Now, in fact, the substance of what happened--I would never
have resigned if it was just typographic errors--were
significant deletions of substantive parts of our report,
especially relating to what we wanted to look at in the year
ahead.
For example, we wanted to look into the material witness
statute which we had learned during one of our public hearings
had civil liberties implications, and we had not ever looked at
that. We received back the red line where that provision was
deleted, as were other deletions.
The material witness deletion, it was explained to us, was
deleted not for substantive reasons and not for reasons of
classified or sensitive information. We were told that it
should be deleted because it might be confused with the U.S.
attorneys controversy issue--in other words, an essentially
political reason.
So, without casting aspersions, I recognized that the White
House was doing its job in staffing us out just as if we were
part of the White House, which we were. And so I changed my
mind and decided that the better way would be to have an
independent agency where the White House would not feel it
needed to vet, edit and review the work product of a board that
was supposed to be doing oversight.
But, again, having said that, everybody acted with correct
motives, everybody did what they believed was right, and, most
importantly, Fred Fielding was able to support the efforts of
Alan Raul and myself and others to return to the original
language that we had adopted, the very deletions that had
caused me great concern.
I chose not to continue, notwithstanding Fred Fielding's
support of my viewpoint, because I did not want every week or
every other week to go back to Fred Fielding to ask him to
intervene. I thought that the board needed fundamentally to be
restructured, and that is why I reluctantly chose to resign.
Ms. Sanchez. Thank you, Mr. Davis. We appreciate your
testimony.
Mr. Cannon. Madam Chair, may I ask unanimous consent to
speak out of order for 1 minute?
Ms. Sanchez. Without objection, so ordered.
Mr. Cannon. Thank you.
Mr. Davis and I have disagreed in the past, as he
indicated. From my point of view, he is an eloquent speaker.
And I just wanted to say to Mr. Davis, thank you for
expressing those thoughts with such clarity and with such
insight into the complexity of government and the jobs that
each of us have as individuals and in describing your role as
working on this board and the nature of the disagreement. I
think that was remarkable. I appreciate it, and I just wanted
to say that on the record.
And, Madam Chair, I yield back.
Mr. Davis. Thank you, sir.
Ms. Sanchez. Thank you.
Mr. Teufel?
TESTIMONY OF HUGO TEUFEL III, ESQ., U.S. DEPARTMENT OF HOMELAND
SECURITY, WASHINGTON, DC
Mr. Teufel. Good afternoon, and thank you, Madam
Chairwoman. Ranking Member Cannon, Chairman Conyers, Mr.
Feeney, Mr. Franks, it is an honor to testify before you here
today on the progress of the privacy office at the Department
of Homeland Security and to review the findings and
recommendations of the recent review of our office by the
Government Accountability Office.
I would like to thank Representatives Watt and Cannon for
requesting this review, the recommendations of which were
useful, and I believe some of GAO's observations confirm
progress in areas that we have worked hard to improve.
Oversight is a good thing. It fosters transparency and
accountability, two of the Fair Information Practice principles
that undergird the Privacy Act of 1974.
I would also like to thank Linda Koontz and her team for
the work that they have done on the GAO report and on privacy
oversight generally. While we do not always agree on issues, I
respect her greatly and enjoy immensely working with her.
I was gratified to see GAO acknowledge the privacy office
has made substantial progress both in the number and
significantly the quality of Privacy Impact Assessments issued
by our office. I attribute this to the hard work of my
compliance staff and to our ongoing efforts to update our PIA
guidance. We recently released a new version of the guidance
and held a PIA workshop attended by over 100 people.
The next PIA workshop will be offered at the DHS Annual
Security Awareness Training Conference in late summer 2007, and
I am confident that these efforts will support the trend of
simultaneous increases in the number and quality of PIAs issued
by the department.
I was equally pleased to see in the GAO report that the
privacy office has taken steps to integrate privacy into DHS
decision-making. We call this important goal operationalizing
privacy. To achieve this, the privacy office forms close
relationships with system owners and program managers, along
with I.T. security officials and senior DHS officials.
By placing privacy into the program development and
decision-making processes of the department, we can ensure that
DHS not only meets its legal requirements and improves the
effectiveness of the department's programs, but stands as a
model of how privacy can complement and work with law
enforcement and intelligence agencies.
I also want to mention that the privacy office report of
the Science and Technology Directorate's program, known as
ADVISE, was released to the public yesterday. I know there is
much interest in this report, and I understand that our Office
of Legislative Affairs has provided electronic copies in PDF
format to staff Members of the Committee. It is also available
on our public Web site, dhs.gov/privacy.
This report took longer than I had anticipated, but it is a
thorough report covering a number of uses of the tool in
various stages of development and use throughout a number of
DHS components. The extra time will make the report much more
informative and useful to the public, Members of Congress and
the department programs planning to use ADVISE in the future.
I thank the Subcommittee for this opportunity to testify
about the accomplishments of the privacy office, and we look
forward to demonstrating continued improvement in our efforts
to ensure privacy is protected throughout the Department of
Homeland Security.
I look forward to answering your questions.
[The prepared statement of Mr. Teufel follows:]
Prepared Statement of Hugo Teufel III
Ms. Sanchez. Thank you, Mr. Teufel.
Ms. Koontz?
TESTIMONY OF LINDA KOONTZ, U.S. GOVERNMENT ACCOUNTABILITY
OFFICE, WASHINGTON, DC
Ms. Koontz. Madam Chairwoman and Members of the
Subcommittee, I appreciate the opportunity to be here today to
discuss progress made by the Department of Homeland Security's
privacy office.
As you know, the Homeland Security Act of 2002 created at
DHS, the first statutorily required senior privacy official at
any Federal agency. The law mandated that this senior official
assume primary responsibility for privacy policy, including
assuring that the use of technology sustains and does not erode
privacy protections relating to the use, collection and
disclosure of personal information.
At this Subcommittee's and others' requests, we reviewed
the progress the DHS privacy office has made since it was
formally established in 2003. I would like to briefly summarize
our results.
The privacy office has made significant progress in
carrying out its statutory responsibilities under the Homeland
Security Act and other laws. Specifically, the office has
established processes for ensuring that the department complies
with the E-Government Act requirement to conduct Privacy Impact
Assessments before developing technology or initiating
information collections that involve personal information. It
has done this by developing a compliance framework including
written guidance, a template for conducting the assessments,
training and a process for identifying systems that require
assessments.
These actions have led to increased attention to privacy
requirements. It has also proved beneficial in identifying
systems that require an assessment, from 46 identified in 2005
to a projected 188 in fiscal year 2007.
However, the resulting workload is likely to prove
difficult to process in a timely manner. Designating privacy
officers in certain key department components could help speed
the processing of assessments, but DHS has not yet done this.
The office has also taken action to integrate privacy
considerations into the departmental decision-making process by
establishing a Federal advisory committee, conducting public
workshops and participating in policy development for major
departmental initiatives. These actions provide an opportunity
for privacy concerns to be raised explicitly and early in the
development of policies.
While substantial progress has been made in these areas,
limited progress has been made in other important aspects of
privacy protection. For example, the office has reviewed,
approved and issued 56 new and revised public notices that are
required under the Privacy Act.
However, little progress has been made in updating notices
for legacy systems, older collections of records originally
designated and maintained by other agencies prior to the
creation of DHS. As a result, the department cannot be assured
that the privacy implications of its many systems that process
personal information have been fully and accurately disclosed
to the public.
Further, the privacy officer has not been timely in issuing
public reports. For example, the office has issued only two of
the required annual reports to the Congress in the past 3
years. In addition, its reports on investigations that the
office conducted were, in some cases, not publicly released
until long after concerns had been addressed. Late issuance of
reports has a number of consequences beyond failure to comply
with the law. It potentially reduces the value of these reports
and erodes the credibility of the privacy office.
Clearly, the DHS privacy office has made significant
progress and has been a leader in the Federal Government.
Nonetheless, much challenging work remains to be done.
That concludes my statement. I would be happy to answer
questions at the appropriate time.
[The prepared statement of Ms. Koontz follows:]
Prepared Statement of Linda Koontz
Ms. Sanchez. Thank you, Ms. Koontz.
We will now proceed to our first round of questioning.
Members will have 5 minutes to ask witnesses questions. We ask
that you remain mindful of the time constraints that we are
working under.
I will begin by recognizing myself for 5 minutes.
Mr. Davis, I am interested in your testimony because you
were very clear about people working with correct motives in
terms of the work the board was trying to accomplish, and yet
you also mentioned an instance in which there were deletions
made in the report for what you termed political reasons.
How can you reconcile the two statements that you just made
because it sort of seems inherent that if deletions were made
for political reasons, there perhaps weren't always the purest
of motives?
Mr. Davis. Well, I worked in the Clinton White House, and
if an office of the Clinton White House were putting something
out on its own without getting permission from the chief of
staff or the press secretary and it happened to be a message
that was out of political sync with what the Clinton White
House wanted, the White House office would not be permitted to
do that.
It would have to go through the press secretary, the Office
of Management and Budget, the White House chief of staff. The
White House is an organization that has a hierarchy, so one
doesn't just put out public statements that may be out of sync
with what the President or the White House's critical message
is. That is perfectly appropriate.
That is what happened. Our report was viewed as simply an
expression of a White House agency that needed to be cleared by
various political substantive and bureaucratic methods that are
very, very consistent with being treated as a White House
office.
When I accepted the job, I understood there was a hybrid
trying to be accomplished, putting us in the White House as an
office of the President, but trying to give us independent
oversight authority. And I recognized ultimately the-square-
peg-in-the-round-hole concept simply did not work, and that is
why I resigned.
Ms. Sanchez. Okay. I am interested in knowing then what you
think that Congress could do to address the inherent tension
involved in the somewhat questionable independence of the board
when it provides oversight of the executive branch, while at
the same time being part of the Executive Office of the
President.
Mr. Davis. Well, I changed my mind on this. I agreed with
Alan, and we spoke to Senator Lieberman and Senator Collins and
recommended that the office be kept within the White House but
be granted investigative special independent powers, and that
was our hope.
When I saw what happened to our report and I recognized the
bureaucratic, political and institutional pressures of being
part of the White House, it was just too much to ask the White
House not to act like the White House and treat us as an office
of the White House.
At one point, we did send a memo to the President, or tried
to, in which we asked the President to issue an executive order
that basically could be summarized by three words, ``Leave them
alone.'' And that memo to the President and that executive
order was never issued.
I do believe the new approach does better guarantee
independence. I hope that Alan Raul and his concerns and
others' concerns, including myself, can be overcome by allowing
the independent agency that would be the result of the
legislation that I now understand is being considered to have
the same access that we did, which was phenomenal access and
which did lead me to some of the positive conclusions, for
example, about the surveillance program in its execution that
Congressman Cannon referred to.
I had doubts, Congressman, which I would like to get into
about the constitutional and legal validity of that program,
which I now feel better about, now that they have FISA court
approval. But the execution of the program and the people at
the NSA executing it impressed me greatly as sensitive to civil
liberties and privacy rights.
Ms. Sanchez. Let me ask you this. I am interested in having
you explain why the brief statement on the national security
letter abuses by the FBI was relegated to the cover letter of
the board's first annual report to Congress and not included in
the extensive discussion of that report. It seems to me that
that is a pretty significant issue that----
Mr. Davis. I have a terrific personal angst about that
topic, especially the man I am sitting next to who backed me up
and also believed that the national security letter violations
were egregious, of great concern, and to this day to me
reflected an FBI out of control that had officers in the field
violating the law with no effective oversight and to this day
have great concern.
For reasons that were beyond my comprehension, we set a
date for March 1 of that report, and the I.G. report on the NSL
letters came out in the middle of March. I wanted to include
our critical comments about the national security letter abuses
since it was so critical in our report, since it wasn't due to
the end of the month, and we had great resistance to doing
that.
The compromise, thanks to Alan's support of my position and
my support of Alan's position, was to put it in the cover
letter to the report where we were critical, but not in the
report itself, something that to this day I still have never
been able to understand.
Ms. Sanchez. Well, thank you for your frankness.
And at this time, my time has expired. I would like to
recognize Mr. Cannon for 5 minutes of questioning.
Mr. Cannon. Thank you, Madam Chair.
Mr. Raul, do you agree with how Mr. Davis characterized
your views to be?
Mr. Raul. Yes, for the most part. We had extensive
discussions over the substance of the violations by the FBI not
complying with the legal requirements for issuance of national
security letters. We also, I think, were relatively congruent
in our views about the importance of publicizing that in an
important forum.
So the question really became: Was it going to be in the
body of the report, in the cover letter, or in an independent
statement that would be issued to the press and on our Web
site? The key point, though, is that we did make the
substantive criticisms publicly.
Mr. Cannon. And it seems to me that the cover letter would
be really the place to do that.
Mr. Raul. It had a prominence in the cover letter that it
might have lost if it was in the body of it, but all the
members of the board were agreed that it was important for the
board to make a statement on this very important sensitive and
not well-handled matter by the Federal Bureau of Investigation.
Mr. Cannon. The important thing is how we make this office
work or this board work better in the future.
But can I just clarify one thing, Mr. Davis? In the final
report, the piece that you objected to on the material
witnesses was actually included in the report. I take it that
is because you objected and then it went back in.
Mr. Davis. Yes, that and a number of other deletions that
were in the section called ``the year ahead.'' And it was
thanks to Fred Fielding and my going to Fred Fielding and his
backing me up and I must say Alan Raul's support for returning
those deletions that they were put back in. Most of them were
put back in, not all.
Mr. Cannon. I am personally a big fan of Fred Fielding.
Mr. Davis. Me, too.
Mr. Cannon. One of the bright stars out there.
Let me just talk a little bit about your function and our
function here, and then I want to take it back to the two of
you to talk about where we should go, what we need to do, and
this is where I have been out of sync with Republicans for the
10 or the 12 years they were in the majority.
I think that Congress has an obligation to oversee. When
Republicans took over, they had this idea that we would show
the world that we could cut our own budget and, therefore, the
rest of the agencies can do it as well, and we actually in fact
cut spending. We did not cut the rate of growth of spending. We
actually cut spending in 1996, the next cycle that the first
Republican majority was in charge of, and that was a remarkable
thing and I think the foundation for the huge growth we have
had in our economy.
I think that is very important, but at the same time, what
we did was cut our budget by eliminating the oversight folks.
Now the vast majority of what the Administration does, it does
based upon laws and mandates, and there is very little
discretion on the part of the President. But, on the other
hand, when something goes wrong, the President of whichever
party gets all the blame, and I think that is actually very
counterproductive in our society.
So I think--and I express this to my colleagues here--that
we ought to be much more robust in oversight, in part because
we have given mandates to the Administration. We ought to be
making sure those happen, and whether that conflicts with the
President, whether we are critical of even a political
appointee or otherwise, ultimately, the country is better
served by that sort of thing.
Now you have spoken eloquently, Mr. Davis, about the square
peg in the round hole and how this doesn't work, and, on the
other hand, it may have been fixed with an executive order
saying, ``Let them be.''
And I take it, Mr. Raul, you would like to see this remain
in the White House because of the kind of access it gets. Would
you mind talking a little bit about what you think of where it
appears we are headed on the board?
And then, Mr. Davis, if you would respond?
And then, Mr. Raul, if you would follow up and----
Mr. Raul. Yes, Mr. Cannon, thank you. I would love to
address that.
Let me preface my remarks here with what my views on this
are for myself. I am a member of a collegial board of four
members now, so I will express my views and not necessarily
those of the chair or the full board.
There is a distinction between the Executive Office of the
President and the White House office. Colloquially, we refer to
them the same, but the Executive Office of the President is a
broader constellation of units that work directly for the
President and serve the presidency but are not within the
immediate staff of the White House. So the Executive Office of
the President has, in addition to the White House office, OMB,
the U.S. Trade Representative's office, and, you know, other
offices, Council on Environmental Quality and so on.
The original legislation, the Intelligence Reform and
Terrorism Prevention Act, established the privacy board in the
Executive Office of the President. Congress then proceeded to
appropriate funds for the board to the White House office. So
there was a bit of a mismatch that occurred right then and
there.
As part of the Executive Office of the President, we have
had access to anybody that we have sought access to with an
ability to obtain information and exchange views on the most
candid, free-flowing basis. Really, I think it is fair to say
almost without any reservations or inhibitions.
If the board, as it appears will be the case, is taken out
of the Executive Office of the President, put at arm's length
from the executive branch, although part of the executive
branch, we will have an inspector general type situation in
contrast with the privacy and civil liberties officer type
situation.
We have heard Ms. Koontz in her testimony say that one of
the positive attributes of Mr. Teufel's office is that it is
increasingly able, as I heard her say and as I understand it,
to become involved in the development of policy early. That is
different from a function that the inspector general plays and
different from the function that Congress and its oversight
function would play in judging whether the Administration has
carried out the laws faithfully.
Ms. Sanchez. The time of the gentleman has expired.
At this time, I would like to recognize Mr. Conyers for 5
minutes.
Mr. Conyers. Thank you, Madam Chairman.
I appreciate the witnesses' testimony.
I am so glad that we have talked about the national
security letters. The head of the Federal Bureau of
Investigation, Mr. Mueller, will be before us in 2 days, and we
have the same concerns that you have already expressed, and so
I thank you both for raising that.
And I compliment Attorney Raul for working as closely as he
did in many instances with Lanny Davis.
Mr. Raul. Thank you.
Mr. Conyers. That gives me hope.
Now, just to get one matter out of the way, Mr. Teufel, we
received this report. It came into the staff's office at about
9:30 this morning.
Mr. Teufel. Yes, sir.
Mr. Conyers. As far as I know, nobody has been able to read
it. We don't know what is inside it. And you knew you were
going to be a witness. Couldn't this have arrived maybe 24
hours earlier?
Mr. Teufel. It could have, sir, and I would be happy to
come and speak with you and your staff about the report and all
the time that you would like to talk about it, sir.
Mr. Conyers. And if we held another hearing for that, would
you come to that?
Mr. Teufel. Absolutely, sir. At your convenience.
Mr. Conyers. Well, my convenience would have been that you
delivered it a day earlier.
Mr. Teufel. Yes, sir.
Mr. Conyers. We could do it here.
Mr. Teufel. Yes, sir.
Mr. Conyers. I mean, we are holding a hearing right now.
Mr. Teufel. Yes, sir.
Mr. Conyers. So what is in the report, just real quickly? I
mean, what can you say about the report in a sentence or two?
Mr. Teufel. Well, in a sentence or two, sir, ADVISE is a
tool that the Science and Technology Directorate came up with.
It is a tool for making clearer links between data or among
data.
Mr. Conyers. Okay, stop.
Mr. Teufel. Yes, sir.
Mr. Conyers. I can see under the 5-minute rule that we are
not going to get very far down the line here.
Now, Lanny Davis, I would like to know what you think of
the situation that exists right now. We have a whole string of
problems inside the United States that deal with constitutional
discretion, abuses of the executive power. We can hardly get
anything here.
We actually had the Republican National Committee raising
executive privilege as a reason they could not give us
documents. They dropped it. It was too ludicrous. I guess
nobody could take that, a political party claiming presidential
privilege.
But we have a whole string of problems here, and I would
like you to comment on whether you see them as serious and as
complicated that it would lead me and Chris Cannon both to
quote Alexander Hamilton.
Mr. Davis. I tried to be consistent with how I felt in the
Clinton White House when I felt congressional oversight and
subpoenas were being abused for political purposes, and the
assertion of executive privilege to us made sense when we
thought that Congress was abusing its investigatory powers for
partisan purposes.
So there is an institutional perspective from a separate
branch of government called the White House and executive
branch when Congress appears to be overly intrusive.
Mr. Conyers. Whoa. You----
Mr. Davis. On the other hand, I have great concerns that
this Administration and this White House have so far gone in
the other direction that they appear to define executive power
as completely regardless of congressional oversight
responsibilities, to the point where I believe that the NSA
program itself was launched and implemented, and several years
later, somebody finally caught up in the Justice Department
that we need legal authority to do what we are doing.
And they got the legal authority in a very creative and, I
thought, legally correct fashion, but why 3 or 4 years after
beginning the surveillance program? Why not do it right away?
And I think that flows from an assumption among some people in
this particular White House that there is something called the
unitary presidency. Whatever that means, it means we are the
only branch of government that counts.
So the pendulum appeared to me, while I was there in the
White House, to have swung too far in one direction of
congressional abuse of investigatory oversight authority. Now
appears to have swung too far in the direction of ignoring
congressional legitimate oversight--subpoenas, requests for
documents, requests for testimony.
If the Clinton White House had ever said, with all due
respect, to Congressman Burton, ``You can interview us, but not
under oath, no transcript, and we are not going to appear in
front of you,'' my good friend, Congressman Chris Cannon, on
``Crossfire'' that night would have killed me. You have to be
kidding me? Not under oath, no transcript, and you expect that
to satisfy congressional oversight?
And the deafening silence of this particular Congress,
Republican and Democratic, to the notion that somebody should
be interviewed by the Congress and no transcript, put aside not
under oath, to me strikes me as the pendulum going too far.
But I do hope that Democrats will be intellectually
consistent and grant that there is a proper assertion of
executive privilege when the subpoena power and congressional
investigations go too far.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Davis. Sorry to speak so long.
Mr. Conyers. No, I thank you. And I don't have any time for
questions, but I want to assure you that the 7 months of this
Committee's existence, the Judiciary Committee, we have been
very careful about politicizing or turning into a partisan
endeavor or some wide search for information far beyond our
oversight capacity. And so I thank you for your comments.
Ms. Sanchez. I thank the gentleman.
The gentleman from Arizona, Mr. Franks, is recognized for 5
minutes for questioning.
Mr. Franks. Thank you, Madam Chair.
I thank all of you for coming here.
Again, I would like to express my personal appreciation,
Mr. Davis, too. It is not so often that someone is so eloquent
in what seems to be a genuine attitude of bipartisanship and a
commitment to----
Mr. Davis. Thank you.
Mr. Franks [continuing]. Saying what they believe in an
unbiased fashion, even if there might be some of us that take
issue with some of it.
Mr. Teufel, how would you characterize the interaction
between your office and the Privacy and Civil Liberties
Oversight Board? And do you think that relationship would
improve or deteriorate if the board was taken out of the White
House?
Mr. Teufel. Well, sir, I would describe the relationship as
a very good one. The relationship is on two levels.
First is at the working level, and by that I mean that my
colleague at the department, Dan Sutherland, the civil rights
and civil liberties officer, and I regularly meet with Mark
Robbins, who is executive director for the Privacy and Civil
Liberties Oversight Board; Alex Joel who is the privacy and
civil liberties officer at OD&I; and Jane Horvath at Department
of Justice; and other privacy officers. And so we meet and talk
fairly regularly about issues.
And then also in the more formal sense that my office
interacts with the Privacy and Civil Liberties Oversight Board,
the secretary and I have spoken to the board on a couple of
occasions, and we routinely make available information to the
board at its request whenever it wants to know something about
what we are doing or what the department is doing. So we have a
very good relationship.
I am not sure what the differences would be if the office
were moved outside of the White House. I think my concern would
probably be that there might be a change, and it might be a
more adversarial relationship generally between the new office
and the executive branch. But, sir, I just cannot tell you. I
don't know.
Mr. Franks. If you were to point to the greatest single
achievement that your office has had and perhaps even go
further and tell us what you think the best way to improve the
office would be in just an overall fashion, I might pose that
to some of the other members as well.
Mr. Teufel. Well, sir, the best thing to improve the office
would be within the President's budget, there is a request for
funding for additional slots within the office. My office is
responsible for Freedom of Information and also Privacy Act
compliance, System of Records Notices and Privacy Impact
Assessments, and the President's budget asks for additional
folks to assist in those areas. I have 211 legacy agency System
of Records Notices that I have, and I am determined before I
leave to review and get up to date, and we could use the help.
In terms of what I have done so far, it is further infusing
the culture of privacy within the department and helping to
regularize our approach to work product. We still, as Chairman
Conyers noted, have a long ways to go with respect to reports,
but we are making great improvements in terms of getting out
reports.
I just looked at our draft annual report for this last
year, July to July, and read through it, gave my comments to my
staff, and we are going to get it through the review process
and get it out and up to Congress in September.
So that is what I would say in answer to your question,
sir.
Mr. Franks. You know, as a political appointee, when an
Administration's in its last couple of years, I think you have
18 months left. It is always kind of a challenging question, I
know, but what do you plan to do with the remaining 18 months
that you have in office?
Mr. Teufel. Work on the recommendations of the GAO report,
get the remaining 211 legacy agency System of Records Notices
up to date, continue to do the good work of the department, and
I have no plans over the next 18 months. Unless the National
Guard deploys me, I will be here at the job, sir.
Mr. Franks. Would anyone else on the panel like to take a
shot at what do you think would be the most significant thing
that could be done to improve the office and its function?
Yes, ma'am?
Ms. Koontz. I would just like to underscore a couple of our
recommendations.
Two of the biggest challenges that the privacy office faces
is, number one, the reporting issue. The reports have taken a
long time for them to be finalized, although there seems to be
some improvement more recently, and I think that putting some
more discipline around that review process could help speed up
the issuance of those reports, and it sounds like some of the
things that Mr. Teufel is doing may help in that regard.
I would think secondly the public notices that are supposed
to be issued on the Privacy Act, they have a huge workload
ahead of them, and one of the things that we thought would help
that, actually, the privacy office originally recommended as
well, and that is establishing privacy officers in certain of
the key components in DHS to help speed along this process.
So I look forward to working with them on implementing
those recommendations.
Mr. Franks. Thank you, all.
Thank you, Madam Chair.
Ms. Sanchez. The time of the gentleman has expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Madam Chair.
And let me first apologize to the witnesses for not being
present to hear their testimony. Unfortunately, I had, as we
often do, two or three different places, all important, to be
in at the same time.
And I especially want to apologize to my good friend and
former classmate, Lanny Davis--we go back a long way--and
applaud, as he has already been applauded, his willingness to
speak appropriate positions that he believes in, regardless of
which way they cut politically.
It is that point that I would like to focus on first and
maybe then pick up a second point if we can get this one, and
that is the distinction between what our Committee has been
pursuing with this Administration and the way in which some of
the oversight was done in the last Administration.
Am I correct that it got to a point with the last
Administration that Congress was or at least one of the
Committees was actually issuing subpoenas before they even
contacted the agencies to request certain information?
Mr. Davis. Yes. At the Clinton White House, we were
accustomed to receiving subpoenas even before a request for
documents and a negotiation, which is traditionally the way it
is done, and we were accustomed at times to try to negotiate
something short of the subpoena because they were usually very
broad and sometimes would require emptying all the file
cabinets of the White House for fear that if you missed one
piece of paper, you would be in an obstruction of justice
charge.
So we were frequently concerned about the premature
issuance of subpoenas, but we never would have conceived of
defying one. We frequently fantasized about it, but we never
actually did it.
Mr. Watt. What are some of the other distinctions that you
would draw? I am not trying to draw you into an endorsement of
our process versus what was happening in the last
Administration with congressional oversight, but what are some
of the other distinctions that we might be alert to in trying
to make sure that we stay far from the line where we appear to
be being on some partisan endeavor as opposed to the genuine
business of oversight?
Mr. Davis. I think conversations and communications between
staff and the President would be something, whether I am a
Democrat or a Republican, I would be very sensitive to, even if
it is a politically attractive issue. And I am referring to the
U.S. attorneys issue, which I think there really is serious
potential wrongdoing that causes me concern, and congressional
oversight, I think, is necessary.
Still, communications between individuals and the President
would, to me, be a line to draw.
Mr. Watt. But if there are people on record as saying that
the President had no involvement with a particular issue, would
that seem to be a sufficient basis for discounting that as a
major factor?
Mr. Davis. I think the Justice Department has an obligation
to disclose everything there is to be disclosed about
communications between the Justice Department and the White
House on that issue because there is serious possible
impropriety.
I draw the line about White House staff communicating with
the President. We were very sensitive to those requests for
documents for testimony involving communications with the
President, but, having said that, Congressman Watt, we
ultimately surrendered and after fighting a while, we ended up
saying to ourselves, ``Why fight if we are going to give up?
This is a transparent process we are in. Congress is going to
continue to insist that we do this.'' And we ended up giving it
up.
Mr. Watt. Before my red light goes off, let me see if I can
shift to the second area because it strikes me that the Privacy
and Civil Liberties Oversight Board is kind of to the executive
branch the equivalent of what a privacy office would be in a
particular agency.
Is that an accurate assessment, and if so, how have the
agencies themselves avoided the same kind of potential
conflicts that gave rise to your resignation?
Mr. Davis. The big difference--and it goes back to
Congressman Cannon and I in our conversation--is we were a
creation of the Congress and the word ``oversight'' was put
into our name and the legislative history required us to report
to Congress and to do oversight.
The privacy officers are supposed to be internal as
watchdogs within the agency, but the word ``oversight,'' to me
at least and I believe to my colleagues, meant that we could be
critical and a public critic, if necessary, to the Congress as
a public entity, not a private agency as staff to the
President, but a public accountability doing oversight, and
that is where the square-peg-and-the-round-hole problem
occurred.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Watt. Thank you, Madam Chair.
Ms. Sanchez. Thank you.
I have been informed that we have a couple of outstanding
questions, so I am going to ask unanimous consent that I be
allowed 2 more minutes for questioning.
And, without objection, so ordered.
Mr. Watt. Can I reserve the right to object just long
enough to inquire, does that mean that we are doing another
round of 2 minutes each?
Ms. Sanchez. We were trying to avoid doing a second round
of 5 minutes each. I have a very brief question I would like to
ask.
Mr. Watt. What about 2 minutes each?
Ms. Sanchez. If there is no objection.
Mr. Cannon. I would have no objection to the gentleman
taking an additional 2 minutes.
Ms. Sanchez. We will do them all. Does that satisfy the
gentleman from North Carolina?
Mr. Watt. Yes, Madam Chair.
Ms. Sanchez. Okay.
Mr. Raul, page 22 of the board's first annual report to
Congress states that, ``In order to maximize the board's
effectiveness and to prevent the diffusion of its limited
resources across too many programs, the board has elected to
concentrate on the United States and U.S. persons.'' Footnote
46 on page 22 of the report, however, notes that the board may
revisit that determination.
Is the reason that the board chooses to limit its scope
because of funding or because of some other reason? Do you
know?
Mr. Raul. It was our view that nothing in the statute,
Intelligence Reform and Terrorism Prevention Act, or
legislative history or any of the comments of the 9/11
Commission, which was one of the entities that recommended the
creation of a board like ours, had focused on extraterritorial
impacts. The focus was on the American way of life, privacy and
civil liberties for Americans. So I think that we had a robust
debate internally after substantial legal analysis as to what
was required and what was permitted.
Speaking for myself of what my view of both the law is and
of our decision on this point, we felt that it was not entirely
clear that the board was authorized or precluded from
considering international or non-domestic issues, as privacy
and civil liberties might affect non-U.S. persons. So we
thought that it was possible that we had the authority to go in
that direction, but not required.
Ms. Sanchez. Do you think it would make sense if Congress
wanted to, for example, review civil liberties questions raised
by detainees at Guantanamo and to meet the mission and mandate
of the Intelligence Reform and Terrorism Prevention Act of 2004
that it should express a legislative mandate for the board to
review those areas? Would that help clarify some of the
confusion?
Mr. Raul. Well, that would certainly clarify the confusion.
Whether it would be prudent to do so is a question that I leave
to you, and if it gets to the President, the President.
Obviously, where you trench upon commander in chief and foreign
affairs responsibilities, a different set of constitutional
considerations come into play, but I would certainly agree with
you, Madam Chairwoman, that it would clarify the confusion or
uncertainty.
Mr. Davis. Could I just add 30 seconds? There was a good
debate on this issue, and my personal opinion was that when an
American citizen under the power of our government snatches
somebody in a rendition and puts them in prison in Syria and
tortures them, it doesn't matter to me whether that individual
is an American citizen or a non-American citizen. That is a
matter that our American values have been compromised, and the
board should be looking into that.
So we had a disagreement on that, Guantanamo and other
issues, and the sentence you just read was the compromise that
we focus on the word ``priorities,'' but there was serious
disagreement about whether Congress intended us to be worried
about American government officials doing that to non-American
citizens, and we did--I think Alan is right--think the Congress
should have been much clearer in mandating whether they wanted
us to do that.
Ms. Sanchez. Thank you, Mr. Davis.
I understand that the gentleman from Michigan seeks to be
recognized.
Mr. Conyers. Yes, I ask unanimous consent to proceed for a
few minutes.
Ms. Sanchez. Without objection, so ordered.
Mr. Conyers. Thank you.
I am so glad that this issue was raised by yourself,
Chairwoman Sanchez, because I wanted to put in the record an
examination of the President's executive order of last Friday
in which he issued an executive order supposedly clearing up
the question of the condemnation of torture in this country. As
David Cole points, it was full of loopholes and cleared up
little or nothing. And I ask unanimous consent to put it in the
record.
Ms. Sanchez. Without objection, so ordered.
[The information referred to follows:]
Mr. Conyers. The main question, though, is to our GAO
representative, Ms. Koontz. What are these four recommendations
that you boiled your testimony down, plus the observation that
the privacy office hasn't been timely in issuing public
reports, potentially limiting their value and impact.
If you are not well-read in this kind of language, it seems
like administrative, you know, ``Let's be neat, let's be on
time, fellows.'' But I suspect there is something far more
serious in why you put together a lengthy report that comes to
these conclusions.
Ms. Koontz. I had hoped our report sounded more powerful
than that, but I will give you an example.
There was a report down on the multistate antiterrorism
exchange. It was started in 2004 based on an ACLU complaint. It
was not issued until 2006. I would say another example would be
a data-mining report that was asked under Appropriations Act.
It was due in December 2005. It wasn't completed until July
2006, but then not made public until late in that year.
I think in some of these cases, especially in the first one
I mentioned, the program had already been terminated well
before the report was issued. Our point was that it is not so
much bean counting as it was that this was no longer a useful
communication with the public, and a large amount of privacy is
being transparent with the public, saying what you are doing
with citizens' personal information.
Mr. Conyers. So stalling is a way of obfuscation?
Ms. Koontz. It could be.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Watt. Madam Chair, I ask unanimous consent for a
modicum less than a few minutes.
Ms. Sanchez. You will be granted 2 additional minutes, Mr.
Watt.
Mr. Watt. Okay. Well, I was thinking that I would not dare
ask for what the Chair of the full Committee asked for, but if
I asked for something less than that, I will get it.
Mr. Teufel, just in follow-up to the question that I raised
with Mr. Davis, have there been situations in the Homeland
Security privacy setting where you have felt either that the
people above you in Homeland Security or the Administration
have sought to compromise your findings and your efforts to do
what you are charged to do?
Mr. Teufel. No, sir, I have not. And with respect to
reports, I have a very senior career official within my office,
and whenever we get ready to issue a report, that senior career
official takes the pen. She is incorruptible, she has career
protections, and she decides what goes into a report and what
doesn't go into a report when we send it around for review. So
I have not seen that, and we have not had those issues, sir.
Mr. Watt. The second question I wanted to ask: we spent a
lot of time when we were putting this system together debating
whether the authority to issue subpoenas was important. What,
if anything, have you found on that? I don't know. I mean, I am
not trying the program, but for future reference, it would be
helpful to know, Mr. Raul, for planning.
Mr. Raul. Mr. Watt, on the subpoena authority, this is not
something that the board has requested or really to date found
necessary. As I understand it, the pending legislation----
Mr. Watt. Not that this Administration would honor any of
them anyway.
Mr. Raul. Well, you see, but this is the irony. The
subpoena authority that is under discussion, as I understand
it, is whether the privacy board can issue subpoenas, and if
so, are the subpoenas to be issued to private parties or to
other government agencies.
I believe that the language that was in H.R. 1 would have
authorized the board to issue subpoenas to private entities and
not to the government. That is the way the inspector general
statutes were.
I am not sure how essential the issuance of subpoenas to
private parties for the executive branch Privacy and Civil
Liberties Oversight Board really is, so I think that the issue
is perhaps a bit of a tangent for us. We have not found it a
problem not to have it. If we had subpoena authority for
private entities, I am not sure that there would be a serious
constitutional issue there, so I think the issue is a bit of a
tangent.
Mr. Watt. I thank the gentlelady. These were just follow-
ups to some concerns I had. I wasn't trying to prolong this,
and I appreciate the extra time.
Ms. Sanchez. Thank you, Mr. Watt. I appreciate the
questions.
Mr. Franks?
Mr. Franks. Thank you, Madam Chair.
Madam Chair, I will be very brief, just to comment related
to Mr. Davis and Chairman Conyers.
Ms. Sanchez. Without objection, you will be granted 1
minute.
Mr. Conyers. I ask unanimous consent for 2 minutes.
Mr. Franks. I will do 1. That will be fine.
Ms. Sanchez. Mr. Franks has told us he could be
significantly briefer than both of you. So he has only
requested 1. [Laughter.]
One additional minute.
Mr. Franks. Thank you, Madam Chair.
Related to any torture policy of the United States, being
on the Armed Services Committee, it is my conviction that the
policy nor the practice of this country has been to torture. In
fact, the penalty for torture is 20 years in prison, and if the
person tortured dies, the death penalty is appropriate,
according to our policy.
So I don't think that policy has been diminished in any way
under this Administration, and I just wanted to make sure that
that is on the record.
Thank you, Madam Chair.
Mr. Watt. Will the gentleman yield?
Mr. Franks. Sure. You have 20 seconds here.
Mr. Watt. Does that apply if the torture takes place in
another country after somebody has been rendered to someplace
else?
Mr. Franks. Madam Chair, I just answered the gentleman's
question. I do not believe that is the policy nor the practice
of this Administration to torture anybody in this country or
otherwise. The Abu Ghraib situation was abuse. But torture is
very well-defined.
Mr. Watt. The gentleman may have misunderstood the question
I was asking. Do the criminal penalties apply if we render
somebody to another country and the torture takes place where
we have not been active participants in the torture?
Mr. Franks. Madam Chair, the gentleman probably is asking
whether or not the prisoners are under the constitution or the
laws of the United States, and, no, I don't think they are.
They would be under the Military Code of Justice.
Ms. Sanchez. The time of the gentleman has expired.
And that will conclude our rounds of questioning.
I want to thank the witnesses again for their testimony
today and for making yourselves available for questions.
Without objection, Members will have 5 legislative days to
submit any additional written questions, which we will forward
to the witnesses and ask that you answer as promptly as you can
so that they can be made a part of this record.
Without objection, the record will remain open for 5
legislative days for the submission of any additional
materials.
I want to thank everybody for their time and their
patience, and the hearing of the Subcommittee on Commercial and
Administrative Law is adjourned.
Mr. Davis. Thank you.
[Whereupon, at 3:11 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Redline version of the Privacy and Civil Liberties Oversight Board,
2007 Report to Congress with edits by The White House, submitted by the
Honorable Linda T. Sanchez, a Representative in Congress from the State
of California, and Chairwoman, Subcommittee on Commercial and
Administrative Law
Answers to Post-Hearing Questions posed by the Honorable Linda T.
Sanchez, a Representative in Congress from the State of California, and
Chairwoman, Subcommittee on Commercial and Administrative Law to the
Honorable Alan Charles Raul, Esq., Privacy and Civil Liberties
Oversight Board, The White House, Washington, DC
Answers to Post-Hearing Questions posed by the Honorable Linda T.
Sanchez, a Representative in Congress from the State of California, and
Chairwoman, Subcommittee on Commercial and Administrative Law to the
Honorable Hugo Teufel III, Esq., U.S. Department of Homeland Security
Answers to Post-Hearing Questions posed by the Honorable Linda T.
Sanchez, a Representative in Congress from the State of California, and
Chairwoman, Subcommittee on Commercial and Administrative Law to Ms.
Linda Koontz, U.S. Government Accountability Office
Privacy and Civil Liberties Oversight Board, 2007 Report to Congress,
submitted by the Honorable Linda T. Sanchez, a Representative in
Congress from the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law