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.