Why I Resigned From the President's Privacy and Civil Liberties Oversight Board — And Where We Go from Here

I have been asked by many interested parties, congressional staff and others, to explain my reasons for resigning from the five-member President's Privacy and Civil Liberties Oversight Board (PCLOB). The best and most complete explanation is contained in two letters that I wrote on the date of my resignation last week — one to my colleagues on the Board — Carol Dinkins, the chair; Alan Raul, the vice-chair; and Theodore Olson and Francis Taylor, members; and the second to President Bush.

But regardless of my resignation, the most important issue remains and must now be addressed by Congress, which is considering changes in the present structure of the Board: Is there a role for a part-time civilian oversight board on executive-branch anti-terrorist programs that potentially might infringe on basic civil liberties and privacy rights in the Constitution and under U.S. laws — or not?

I ask this question because it is not obvious to me that there is such a role or one that can be filled within the Office of the President or even within the executive branch. After all, this Board will, under any proposal I have seen, be filled, in whole or in part, by part-time civilians, not by career government professionals. First, one has to ask why the U.S. Congress should not be the one to provide such oversight rather than a part-time body. Second, can there be effective oversight if most of the Board is only part-time? And most important, can there be effective oversight if the body is placed within the Office of the President, where it was placed when Congress enacted the Intelligence Reform Act of 2004? It was the latter contradiction — providing independent oversight of the same people the Board is supposed to report to — that ultimately led to my resignation, as the letter explains.

The White House in good faith genuinely believed that when the 2004 Congress chose to compromise and place the PCLOB in the Office of the President, it did so knowing that it would be under supervision and control, including substantive and editorial control of written work product. That is why they believed it was their right, even their duty, to extensively edit the final report to congress of the PCLOB, due on March 31, 2007, and ultimately delivered on April 20 — the most important reason why I chose to tender my resignation.

But a supervised and controlled PCLOB was not what the 9/11 Commission had in mind when it recommended in its final report an independent PCLOB in the executive branch, with subpoena power — such as the FTC or even such as inspectors general within executive departments. But the White House opposed that concept at the time. The final compromise, as part of the Intelligence Reform Act, created in effect the "square peg in a round hole" concept — an "oversight" entity (that was, after all, the word Congress chose to put into the Board's name) placed inside the Office of the President, and thus part of the White House.

I had thought that the hybrid or even contradictory nature of that compromise could be reconciled if senior levels of the White House — up to and including the highest level — insulated the Board and insisted on three words: "Leave them alone." But I had underestimated the culture of the vast array of alphabet soup agencies and bureaucracies in the national security apparatus that would resist that concept of independence, or at least be unable to resist the temptation to control and modify the Board's public utterances so long as they were able to — i.e., so long as the Board was seen as part of the White House staffing structure. This phenomenon of control and management by the White House of entities considered to be part of the White House is neither surprising nor that unique to this particular Republican administration. Those who view this as a partisan issue to criticize a Republican administration and expect it would be completely different under a Democratic one are missing the larger point.

I disagreed strongly with the view that just because the PCLOB was part of the White House it had to be part of White House management and control, although I do not question the motives of good faith of those who had that opinion. I was heartened to learn that the current White House counsel, Fred Fielding, who was a member of the 9/11 Commission and had supported an independent PCLOB, agreed at least in part that the Board's report to the Congress should not be substantively modified by White House or administration officials. And as a result Mr. Fielding admirably supported restoration of those deletions, some of which was also supported by other Board members.

But the central question remains: Can this hybrid structure work? Fred Fielding cannot be expected to spend all his time intervening on behalf of the Board. And the White House culture of control and management of the Board is likely to continue so long as the Board continues to be part of the white House.

It is possible, I suppose, that it could work if the president himself insisted on the Board's independence, i.e., if he put out an executive order confined to those three words, "Leave them alone." But even then it is possible to imagine White House staff and executive agency officials would still find a way to try to influence the Board, as still part of the White House, while still believing they were "leaving the Board alone."

And that is why I have changed my mind and now support the House version of legislation (I believe introduced by House Reps. Carolyn Maloney (D-N.Y.) and Christopher Shays (R-Conn.)) that would provide for such complete independence and subpoena power as a separate agency within the executive branch but outside of the White House.

Or it may well be that only Congress has the resources, professional staff and continuity to provide effective oversight.

In either case, the job to be done is very difficult. To strike the delicate balance — between implementing programs to detect and prevent the terrorist murderers from another Sept. 11-type attack on our homeland and preserving the nation's fundamental commitment to civil liberties and privacy rights — is no small task.

And in any event, it is my opinion that the scope of oversight should extend not only to "U.S. persons" but to U.S. officials, operating under the authority of our Constitution and our laws, who abuse and torture non-U.S. persons contrary to law and U.S. policy and who deprive detainees (in non-battlefield conditions) of basic human rights to counsel and to a fair trial to determine their guilt or innocence. There is legitimate confusion and debate as to whether Congress intended the Board to review such possible abuses by U.S. officials against non-U.S. persons. Congress needs to state its intentions on this issue clearly and unambiguously.

My conclusion after a year of meeting our government's senior officials in executive departments and intelligence agencies responsible for executing the war on terrorism has been uniformly positive.

These are to a person impressive and conscientious people who care very much about privacy rights and civil liberties — not just for the rest of us but for themselves and their own families. I honor their work and their effort to walk the delicate line. They make misjudgments and mistakes. But I met no one who was not concerned about drawing the right
line somewhere that still respected and honored the nation's core constitutional values.

If anything, there were times, including when the Board was "read into" and given complete access to the operation of the Terrorist Surveillance Program, that I wondered whether the individuals doing this difficult job on behalf of all of us were not being too careful, too concerned, about going over the privacy and liberties lines — so concerned, with so many internal checks and balances, that they could miss catching or preventing the bad guys from another attack. And I remember walking out of these briefing sessions in some dark and super-secret agency with the thought: I wish the American people could meet these people and observe what they are doing.

I just wish the culture of this administration were more bent towards transparency and getting the story out — without, of course, compromising national security or classified sources or methods that would allow the bad guys to figure out a way around our programs. It's a good story, with good people to tell it. And the American people would be reassured if they were able to see these people in person and hear how concerned they are about striking the right balance.

I would be most interested in the views of readers of this blog as to whether it is preferable to have such a Board within the White House, with the advantages of trust and access that that structure provides; or outside the White House as an independent agency, such as the FTC, or invested under the statute with independent investigatory powers, such as IGs in the various departments; or whether oversight should be left to the Congress.