Hearing Strains to Revive Addled Privacy Watchdog

(CN) - The U.S. Senate Judiciary Committee met Wednesday to grill five nominees for a watchdog group that has not been staffed in four years.

The 9/11 Commission Report recommended establishing the Privacy and Civil Liberties Oversight Board (PCLOB) in 2004 to check against abuses of power in the name of fighting terrorism.

Beset by claims of interference from the Bush administration and neglect in Obama's first term, however, the board has foundered.

The only Democratic member of the first board, Lanny Davis, resigned in protest of the more than 200 revisions the Bush administration made to its first report in 2007, according to the Washington Post.

The board has been vacant and inactive since 2008.

Three years into his term, Obama made his first five nominations: James Dempsey, an executive with the Center for Democracy & Technology; Elisebeth Collins Cook, a former Department of Justice lawyer; Rachel Brand, an attorney for the U.S. Chamber of Commerce; Patricia Wald, a former federal judge for the D.C. Circuit; and David Medine, a WilmerHale partner tapped to chair the board.

Dempsey, Wald and Medine are Democrats. Cook and Brand are Republicans.

All of the candidates seemed reluctant Wednesday to comment on Obama administration policies that most trouble civil libertarians.

All five ducked questions from Sen. Chuck Grassley, R-Iowa, about the CIA's controversial targeted-killing program. The senator blasted the program's secrecy before the hearing and demanded to see the top-secret government memo justifying drone strikes.

Several candidates reserved comment until they could see that memo and other classified data and opinions.

"I'm going to approach that with an open mind and listen to the current thinking that has evolved," Dempsey said.

Sen. Al Franken, D-Minn., grew impatient with the nominees' evasive answers.

He began his series of questions by listing major privacy issues of the day, including domestic spy drones, facial-recognition technology, warrantless cellphone surveillance and immunity for private companies that share information with the military.

On the latter topic, Franken asked: "Does anyone have a specific thought that if you're confirmed, you will look at this?"

He urged the nominees to avoid responding "in a very noncommittal way so you don't ruin your chances of being confirmed."

That remark made the nominees only somewhat more talkative.

Without referring to it by name, Franken and the nominees discussed central issues surrounding the Cyber Intelligence Sharing and Protection Act, or CISPA, which has come under fire by civil libertarian groups for granting civil immunity to companies that want to share consumer information with the government.

Dempsey said there is a legitimate need for private companies and the government to share information, and the board should aim to establish limits.

Cook, the former Department of Justice lawyer, stressed that it would be difficult to chime in on the question before she could see the classified data.

"It's very difficult to opine on specific circumstances because much of the information is classified," Cook said. "We would have to meet with these folks to see what threats they are anticipating."

If confirmed, the nominees will be called upon to produce annual reports on potential civil liberties intrusions from CISPA, but they may not be sworn in before the bill is passed.

CISPA can come to a House vote as early as next week.

In a phone interview, Chris Calabrese, legislative counsel with the American Civil Liberties Union, told Courthouse News that the PCLOB is too underfunded to do its job effectively.

"It was allotted to have a $20 million budget," he said. "It's supposed to have oversight over the entire defense, the entire security infrastructure."

Delays in the nomination process could slice its resources even more.

"If you don't exist, they tend to trim your budget," he quipped.

Meanwhile, Internet watchdogs like the Electronic Frontier Foundation (EFF) have sounded the alarm about the "dangerously vague" statute.

"CISPA would allow ISPs, social networking sites, and anyone else handling Internet communications to monitor users and pass information to the government without any judicial oversight," EFF Activism Director Rainey Reitman said in a statement. "The language of this bill is dangerously vague, so that personal online activity - from the mundane to the intimate - could be implicated."

In a more pointed question, Franken noted that Brand defending the Bush administration's use of National Security Letters for terrorism investigations in a 2007 USA Today op-ed.

He asked Brand if she wanted to revise her position after the Office of the Inspector General reported rampant abuse of the letters, finding that more than 60 percent of the 143,000 issued violated FBI policies.

Brand said that she defended the procedures themselves, but she did not know at the time that they would be abused.

"There is a difference between the provisions of law and how they are implemented," Brand said.

Two of the nominees appeared to agree with Franken's call to forbid law enforcement from tracking U.S. citizens' cellphone data without a warrant, following a recent Supreme Court decision that requires police to seek court permission before tracking suspect via GPS.

"That's my personal view," Dempsey said.

Wald declined to say the same on the Congressional record, but she added that she "signed a report in accordance with Mr. Dempsey."

Having read a colleague's report of the hearing, Calabrese concluded that the nominees clearly "didn't want to take positions on the controversial issues."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit