Bush Nominates Members of New Privacy and Civil Liberties Oversight Board

February 27, 2008. President Bush nominated Daniel Sutherland, Ronald Rotunda, and Francis Taylor to be members of the recently reconstituted Privacy and Civil Liberties Oversight Board (PCLOB). See, White House release and release.

Bush also nominated Sutherland (at left) to be Chairman. These terms are staggered. Bush nominated Sutherland for a term of six years expiring January 29, 2014. Bush nominated Rotunda for a term of four years expiring January 29, 2012. Bush nominated Taylor for a term of two years expiring January 29, 2010.

Sutherland currently works at the Department of Homeland Security (DHS) as Officer for Civil Rights & Civil Liberties. Rotunda is a long time law professor specializing in Constitutional law.

Taylor (at right), who was also a member of the previous PCLOB, is Chief Security Officer for the General Electric Company.

The original PCLOB was created by Section 1061(b) of the Intelligence Reform and Terrorism Prevention Act of 2004. This statute made the PCLOB a part of the Executive Office of the President (EOP). Notably, HR 1 makes the PCLOB "an agency" within the meaning of 5 U.S.C. § 551.

Section 801 of HR 1 [LOC | WW], which President Bush signed into law on August 3, 2007, and is now Public Law No. 110-53, revised the PCLOB.

HR 1 provides that the PCLOB "shall be composed of a full-time chairman and 4 additional members, who shall be appointed by the President, by and with the advice and consent of the Senate."

It further provides that current members "may continue to serve on the Board until 180 days after the date of enactment of this Act." That is, they ceased to serve at the end of January.

HR 1 provides that the purposes of the new PCLOB are to "analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties" and to "ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism".

HR 1 provides that the board shall "have access from any department, agency, or element of the executive branch, or any Federal officer or employee of any such department, agency, or element, to all relevant records, reports, audits, reviews, documents, papers, recommendations, or other relevant material, including classified information consistent with applicable law".

HR 1 does not give the board subpoena power. However, it authorizes the board to request the Attorney General to issue subpoenas.

HR 1 makes the Chairman a full time position.

The members of the original PCLOB were Carol Dinkins, Alan Charles Raul, Ted Olson, Francis Taylor and Lanny Davis. Although, Davis resigned last year.

The original PCLOB issued its second annual report [36 pages in PDF] on January 30, 2008. It addresses at length amending the Foreign Intelligence Surveillance Act (FISA), including the Protect American Act (PAA).

It also addresses the material witnesses statute, watch list redress, the Federal Bureau of Investigation's (FBI) use of National Security Letters (NSLs), the Department of Defense's (DOD) Threat and Local Observation Notices Program, the DHS's National Applications Office, and the DHS's Automated Targeting System (ATS).

See also, first annual report [49 pages in PDF], and story titled "President's Civil Liberties Oversight Board Releases Annual Report" in TLJ Daily E-Mail Alert No. 1,572, May 1, 2007.

The outgoing members wrote in their final report that "The present Board questions whether this statute will lead to the intended enhanced status and authority for the Board and its mission, and notes that the initial result was to stall a number of ongoing initiatives and to remove the present Membership and its staff from office. This necessarily requires a new lengthy confirmation process for successors and duplicative efforts by the new membership to educate itself and integrate its operations into those of the Executive Branch."

Thus, there is now no membership or staff of the PCLOB, President Bush has only now announced several appointments, and the Senate confirmation process could delay their taking office this year, if at all. The PCLOB may not become a functioning body again until well into 2009.