[Congressional Record Volume 150, Number 127 (Friday, October 8, 2004)]
[Senate]
[Pages S10826-S10827]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

  Mr. DURBIN. Mr. President, the 9/11 Commission recognized that one of 
the biggest challenges we face in fighting the war on terrorism is 
protecting civil liberties. The Commission said, ``While protecting our 
homeland, Americans should be mindful of threats to vital personal and 
civil liberties. This balancing is no easy task, but we must constantly 
strive to keep it right.''
  To help keep this balance right, the Commission wisely recommended 
the creation of a board to ensure that the Government does not violate 
privacy or civil liberties. Following this recommendation, the National 
Intelligence Reform Act of 2004 establishes the Privacy and Civil 
Liberties Oversight Board. I want to commend Senator Collins and 
Senator Lieberman for recognizing the importance of this issue.
  The 9/11 Commission has endorsed the Collins-Lieberman Board. 
Commissioners Slade Gorton and Richard Ben-Veniste told the House 
Government Reform Committee: ``A Board of the kind we recommend can be 
found in the Collins-Lieberman bill in the Senate.''
  Some have claimed that establishing this board will tilt the balance 
between security and liberty too far in favor of liberty. I disagree. 
As the 9/11 Commission said, ``The choice between security and liberty 
is a false choice.'' We can be both safe and free.
  Throughout American history, in times of war, we have sacrificed 
liberty in the name of security. Now, we are being tested again. The 
creation of the Privacy and Civil Liberties Oversight Board sends a 
clear message: This time will be different. We will protect the lives 
of the American people, but we will also protect their liberty.
  The board created by the Collins-Lieberman resolution is a vast 
improvement over the President's Board on Safeguarding Americans' Civil 
Liberties, which the President recently created by Executive order.
  The President's board is chaired by the Deputy Attorney General and 
its members will all be high-ranking Government officials, the vast 
majority of them political appointees.
  This board will not be independent because its members are precisely 
those officials who need independent civil liberties advice. This is 
like letting a baseball player call his own balls and strikes.
  I asked Commission Chair Tom Kean about this. He said that, in the 
Commission's view, the civil liberties board should have independent 
members from outside the Government who can provide a ``disinterested 
perspective.''
  The Collins-Lieberman Board will provide that ``disinterested 
perspective.'' The board will be appointed by

[[Page S10827]]

the President from outside the Government and by the Senate.
  The board will have the authority to obtain the information they need 
to determine whether the Government is violating civil liberties. If 
someone outside the Government refuses to provide this information, the 
board would have the power to issue a subpoena to obtain it.
  This is common sense. An investigative body must have the power to 
get the information it needs to conduct an investigation.
  It is also common. Countless Federal commissions and boards have 
subpoena authority. I will name just a few: The National Labor 
Relations Board, the Equal Employment Opportunity Commission, the 
Federal Trade Commission, and the Federal Energy Regulatory Commission. 
The Privacy and Civil Liberties Oversight Board, which has such an 
important role, should have the same power that so many other 
Government boards and commissions have.
  The Privacy and Civil Liberties Oversight Board will be required to 
share information about its work with the public. This is a good thing. 
There should be transparency in Government. The American people have a 
right to know what their Government is doing.
  As Commissioners Gorton and Ben-Veniste told the House Government 
Reform Committee, ``Such a Board should be transparent, making regular 
reports to Congress and the American public.''
  Of course, at the same time, we have to protect national security. 
This bill does that. It requires that information will only be shared 
with the public, and I quote, ``in a manner consistent with the 
protection of classified information and applicable law.''
  I want to thank Senator Collins and Senator Lieberman for working 
with me on the structure of the Privacy and Civil Liberties Oversight 
Board. I offered several amendments to strengthen the Board. Senator 
Collins and Senator Lieberman accepted these amendments, and I thank 
them for that.
  As a result of these amendments: the chairman of the board and the 
board's executive director will now be full-time. It would very 
difficult for a part-time Board to function effectively.

  Terms for board members will be fixed at 6 years so the President 
will not be able to fire board members who provide advice the White 
House doesn't like.
  Board members will be required to have expertise in civil liberties 
and privacy issues.
  No more than three of the five board members will be from the same 
political party, which will ensure the board is bipartisan and 
independent.
  The board will be able to meet upon the call the majority of the 
board and a majority of the board will constitute a quorum. This will 
protect the board from being dominated by a chair who is too close to 
the President.
  Board members will be required to testify before Congress if called 
to do so. This will prevent any administration from trying to shield 
the disclosure of information by claiming executive privilege for the 
board.
  The board will be required to file semiannual unclassified reports 
with the appropriate Congressional committees. Therefore, Congress will 
be fully informed on the board's important work.
  In reviewing a government power, the board will be required to 
consider whether the need for such power is balanced with the need to 
protect privacy and civil liberties; whether there is adequate 
supervision of the use by the executive branch of the power to ensure 
protection of privacy and civil liberties; and whether there are 
adequate guidelines and oversight to properly confine its use.
  This standard of review will provide the board to follow guidelines 
recommended by the 9/11 Commission as it reviews government power. As 
the 9/11 Commission said, the board should ``ensure that liberty 
concerns are appropriately considered,'' and ``the burden of proof for 
retaining a particular governmental power should be on the executive.''
  These changes will make a strong board even stronger. The Privacy and 
Civil Liberties Oversight Board will ensure that, as we fight the war 
on terrorism, we will respect the precious liberties that are the 
foundation of our society.

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