[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

                              ----------                              

                             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

                              ----------                              


                         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



                                 
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