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

05/18/2007 03:32 pm ET | Updated May 25, 2011

I have been asked by many interested parties, congressional staff and

others, to explain my reasons for resigning from the 5-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.

These letters are posted below.

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 the 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); yet placing that

"oversight" board 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 who 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 necessarily 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 too.

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 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 Congresspersons Carolyn Maloney

(D-NY) 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

right, even delicate, balance between implementing programs to detect

and prevent the terrorist murderers from another 9-11-type of attack on

our homeland while still attempt to preserve the nation's fundamental

commitment to civil liberties and privacy rights.

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 against by U.S. officials

against non-U.S. persons. Congress needs to state its intentions on

this issue clearly and unambiguously.

The balance between needing to protect ourselves from terrorists and

preserving privacy, civil liberties and human rights of U.S. and

non-U.S. persons alike is a very difficult one. But striking the right

balance is not and should not be impossible.

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 and who are trying to implement

anti-terrorist programs that strike the appropriate balance 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. They would feel much

better, including those who consider themselves to be most "liberal" in

their ideology and most concerned, in the ACLU-perspective, about

compromises to basic civil liberties and privacy rights, even during an

effort to protect us all from terrorists.

I just wish the culture of this administration was 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

your thoughts about whether it is preferable to have such a Board within

the White House, with the advantages of trust and access that that

structure provides; vs. 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.

If the Democrats win the presidency in 2008 as I earnestly hope, that

question will remain relevant -- and it will be a Democratic president

and his/her administration that will be the subject of such oversight so

the relevance of this question is important, no matter which party

controls the White House.

***

May 14, 2007

Honorable George W. Bush

The White House

Washington D.C.

Dear President Bush,

I am writing you to inform you that I am resigning from the Privacy and Civil Liberties Board effective immediately.

I wish to thank you for the honor you gave me to serve on this important body. I worked hard and I hope you and others in the administration believe that I made a contribution to justify the faith you placed in me.

Going forward, Mr. President, I would constructively suggest that you do your utmost, including by issuing a directive to relevant executive branch agencies, to guarantee full and early access of the Board to anti-terrorist programs, current and evolving, that might affect civil liberties and privacy rights. All Americans should agree that there can be an appropriate balance between doing what is necessary to win the war against terrorism and also preserving the values of privacy rights and civil liberties that have made America the great country that it is.

I also believe that it is important for the White House staff and others in the administration to understand that you insist on the Board's complete independence - not subject to White House or administration supervision or control. Only with such independence can the Board provide you and future presidents with the important function of effective oversight to ensure that this appropriate balance is maintained in the challenging years ahead.

Thank you again for asking me to serve.

My sincere best wishes to you and your family,

Lanny J. Davis

***

May 14, 2007

Privacy and Civil Liberties Oversight Board Members

1724 F St. NW, 4th Floor

Washington DC 20503

Dear Carol, Alan, Ted and Frank:

I have written the President and tendered my resignation from the Privacy and Civil Liberties Oversight Board, effective as of today. See the enclosed letter to President Bush.

It was an honor to be asked to serve on the Board. Because of all the time and effort we put into the last year together on the Board, I feel it is necessary to explain to you in some detail why I have made the difficult decision to resign.

My reasons for resignation are based on my respectful disagreement with administration officials and most members of the Board over (1) the scope of the Board's oversight responsibilities; and (2) the interpretation of an ambiguous statute and the degree of independence of the Board intended by congress under that statute. I realize there is room for honest disagreement here and I question no one's motives or sincerity.

As to the first reason, I agree with the criticisms of the Board's report to the congress contained in the May 8, 2007, letter to the Board by the co-chairs of the 9/11 Commission, former Governor Thomas H. Kean and former Rep. Lee H. Hamilton, stating that the Board has interpreted the scope of its oversight mandate too narrowly. In particular, as you know, I agree with their view that the Board could and should review alleged civil liberties violations by American officials of non-U.S. person detainees. But I see no hope that the Board as presently constituted will ever do so.

I also continue to be concerned that there may be current and developing anti-terrorist programs affecting civil liberties and privacy rights of which the Board has neither complete knowledge nor ready access.

In addition, the decision by a majority of the Board to refuse to include a more lengthy and critical section in the congressional report concerning FBI abuses of National Security Letters ("NSLs"), as found by the DOJ's Inspector General, increased my concerns about the overly narrow interpretation of its mandate, as expressed by former Governor Kean and former Rep. Hamilton in their letter.

As you know, only after much debate over several weeks was a more extensive and critical statement on the NSL abuses allowed - and even then, it was relegated to the cover letter submitting the report to congress, and not as part of the report itself.

The only reason given for not including the NSL statement in the report - that the report had a self-imposed cut-off date of March 1 and the DOJ Inspector General's NSL report was published after that date - made no sense to me and still doesn't. After all, the Board seemed willing to accept most of the substantial "redline" edits submitted by the White House staff on March 29, just two days from the March 31 deadline for submission to congress; and the final report was not submitted until April 20. So why not move up the self-imposed March 1 "cut-off" date to include a section in the report itself on the NSL issue? I still have no answer that makes sense to me.

I accepted the final compromise to include the longer NSL section in the cover letter to the report -- but not in the report itself -- as form over substance. But, as you all recall, even that compromise would probably not have occurred but for the intervention and support of Fred Fielding in the last day or two before the report was finally submitted to congress on April 20.

Regarding the second reason for my resignation -- the extensive "redlining" of the Board's report to the congress by administration officials, and the majority of the Board's willingness to accept most of these proposed edits and deletions - I was ready to simply state that there was a reasonable difference of opinion over interpreting the level of Board independence intended by congress under the underlying statute, and leave it at that.

But just last week an unidentified member of the Board was quoted in the newspaper "Roll Call" describing the redlined-edits to the Board's report by administration officials as "relatively light."

I respectfully disagree and, in light of the relevance of such redlining to my reason for resigning, I simply cannot allow that comment to go unchallenged. Therefore, I will make available to anyone who asks the copy of the redline of the Board's report and let others judge for themselves whether they were, or were not, "relatively light."

I will offer only one example in this letter to a deletion that I believe was not "relatively light" - the one that troubled me most. In the "Year Ahead" section (pp. 40-41 of the redline version, where all significant proposed deletions were found), we had proposed to review the application of the Material Witness statute. That paragraph was deleted in the redline.

The Board was told that there was no objection to the Board's looking into the subject of the Material Witness statute; but rather, that the White House Counsel's Office requested that we drop the reference to this statute in the report to congress because they were concerned that, as this is a tool used exclusively by U.S. attorneys in their prosecution efforts, this issue could unintentionally get folded into other issues associated with the U.S. attorneys public controversy.

I found this reason to be inappropriate - and emblematic of the sincere view, with which I strongly disagreed, of at least some administration officials and a majority of the Board that the Board was wholly part of the White House staff and political structure, rather than an independent oversight entity.

I am and remain grateful to White House Counsel Fred Fielding for intervening at my request and agreeing to restore that deletion of the Material Witness Statute paragraph as it was written and, indeed, all the proposed deletions from the "Year Ahead" section -- with one exception. That was the deletion of the paragraph reporting to congress on the Board's unanimously - approved January 31, 2007, memorandum to the president asking him to issue a directive to all executive agencies assuring the Board early access to developing and current anti-terrorist programs affecting privacy rights and civil liberties. I agreed to this deletion because I believed and hoped that Fred Fielding would do his best to send the Board's, memorandum to the president for his serious consideration.

As you know, in February, I was asked to offer my opinion to Senators Joseph Lieberman and Susan Collins, Chair and Ranking Member of the Senate Government Oversight Committee, on pending legislation affecting the Board's structure. I told both Senators that I supported the Senate version of the legislation that would have kept the Board within the Office of the President. I explained my belief then that the Board could still conduct independent oversight while part of the Office.

However, because of my recent experiences with the Board's report, I no longer believe that. I now believe the approach of the House bill is better - creating an independent board within the executive branch with subpoena power -- similar to the independence granted executive branch departmental Inspectors General. I have communicated to Senators Lieberman's and Collins' staff my change of opinion. I intend to do the same with the sponsors of the House legislation.

In closing and to repeat what I said above at the outset:

I understand and respect that I have an honest and good-faith disagreement with White House and other administration officials -- and with many of you, my colleagues, on the Board -- about the appropriate scope of the Board's oversight mandate and with the interpretation of the statute that established the Board.

I have spent many hours over the last year doing important work with you and, especially, searching together for the right balance between effective anti-terrorism programs and the need to preserve our nation's civil liberties and privacy rights that are so fundamental to American freedom and values.

I will treasure my memories working with each of you and the impressive and dedicated public servants we met and observed working so hard and so conscientiously to win the war against terrorism while honoring these core American values.

My best wishes to each of you in the months and years ahead.

Sincerely,

Lanny Davis