Grassley Voices Concerns With ‘Broad Mandate,’ Mission of Privacy Oversight Board
President Barack Obama’s nominees to the vacant Privacy and Civil Liberties Oversight Board (CD Dec 19 p12) assured lawmakers Wednesday that they would seek to strike what they called a proper balance between privacy and civil liberties issues and the effectiveness of the government’s counterterrorism efforts. At a Senate Judiciary Committee hearing on the nominations, Chairman Patrick Leahy, D-Vt., said that the country is grappling with “important questions about how our national counterterrorism strategy impacts the rights and liberties of U.S. citizens at home and abroad.”
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Those nominated to the board are David Medine, partner with WilmerHale, as chairman, James Dempsey, vice president at the Center for Democracy and Technology, Elisebeth Cook, partner with Freeborn & Peters, Rachel Brand, chief counsel at the U.S. Chamber of Commerce, and Patricia Wald, former judge of the U.S. Court of Appeals for the D.C. Circuit. The board is an advisory body to the president designed to ensure privacy and civil liberties are considered in laws, rules and policies related to homeland security. It hasn’t operated since 2008 because all five positions are vacant.
Judiciary Ranking Member Chuck Grassley, R-Iowa, said he had “significant concerns” with the “broad mandate” of the board and its mission. “We already have privacy and civil liberties officers at many of the agencies that the board will oversee,” he said, seeking to know how the board will “interact with these existing entities” to ensure it doesn’t prevent them from “doing their job.” Another issue is how the board will operate “without duplicating existing civil liberties oversight,” Grassley said. He also wanted to know how the board would ensure that its work won’t hinder ongoing intelligence or law enforcement operations.
While there are several “pressing concerns” with national security and counterterrorism, the board’s “charge is to make sure there is a proper balance between privacy and civil liberties and counterterrorism,” said Medine when asked to name his first priorities. There’s a “massive” amount of information being gathered by the government in its counterterrorism efforts, he said. “Our goal is to strike the right balance to make sure that privacy and civil liberty rights are protected” while simultaneously making sure that “our efforts to combat terrorism remain extremely effective."
Dempsey said federal agencies were “properly” under “an imperative” to share information after 9/11, but as the 9/11 Commission and Congress recognized, “this poses challenges both on the security side, as illustrated by the WikiLeaks situation, and on the privacy side.” So he would like to work to develop a system of checks and balances and accountability as agencies share information. Cook said she would work with federal agencies to ensure that as they use their “enhanced” counterterrorism tools, “they are taking care to also put into place appropriate enhanced safeguards."
Asked by Sen. Sheldon Whitehouse, D-R.I., to assess the “scale of the cyberthreat” to the country, Dempsey said it was a “very critical threat” that had “broad implications for our economy as well our national security.” He said he believes “further action by Congress is necessary and appropriate” in that area. That’s also “one of the critical issues” in information sharing by agencies, he said. Dempsey agreed with Whitehouse that “the choice between privacy and security is a false choice.” There is need to “balance the two interests,” he said. “Many of the same actions that will protect privacy may enhance security and many of the same things you do from an operational standpoint are actually good for privacy.” He said he will bring that perspective to the board if confirmed.