Privacy and Civil Liberties Oversight Board: New Independent Agency Status
Privacy and Civil Liberties Oversight Board: New
Independent Agency Status
Updated November 26, 2008
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Privacy and Civil Liberties Oversight Board: New
Independent Agency Status
Recommended by the National Commission on Terrorist Attacks Upon the
United States (9/11 Commission), the Privacy and Civil Liberties Oversight Board
(PCLOB) was initially established as an agency within the Executive Office of the
President (EOP) in 2004. Critics, however, maintained that the board appeared to be
a presidential appendage, devoid of the capability to exercise independent judgment
and assessment or to provide impartial findings and recommendations. This
viewpoint gained acceptance in the 110th Congress when the PCLOB was
reconstituted as an independent agency within the executive branch by the
Implementing Recommendations of the 9/11 Commission Act (IR9/11CA), signed
into law on August 6, 2007. Monitoring the transition of the PCLOB to, and its
initial operations in, its new independent status, this report will be updated as events
Privacy and Civil Liberties Oversight Board:
New Independent Agency Status
The final report of the National Commission on Terrorist Attacks Upon the
United States (9/11 Commission), released on July 22, 2004, recommended that
“there should be a board within the executive branch to oversee adherence to the
guidelines we recommend and the commitment the government makes to defend our
civil liberties.”1 This recommendation was the third and final one made in a section
of the report captioned “The Protection of Civil Liberties.” In the other two, the
commission recommended that (1) the President, in the course of determining the
guidelines for information sharing among government agencies and by them with the
private sector, “should safeguard the privacy of individuals about whom information
is shared”; and (2) the “burden of proof for retaining a particular governmental power
should be on the executive, to explain (a) that the power actually materially enhances
security and (b) that there is adequate supervision of the executive’s use of the
powers to ensure protection of civil liberties. If the power is granted,” the report
added, “there must be adequate guidelines and oversight to properly confine its use.”2
Read together, these recommendations called for a board to oversee adherence to
presidential guidelines on information sharing that safeguard the privacy of
individuals about whom information is shared, and adherence to guidelines on the
executive’s continued use of powers that materially enhance security. The report
offered no additional commentary on the composition, structure, or operations of the
recommended board. Such a board, however, had been proposed in December 2003
in the fifth and final report of the Advisory Panel to Assess Domestic Response
Capabilities for Terrorism Involving Weapons of Mass Destruction, chaired by
former Virginia Governor James S. Gilmore III.3
An initial response to the 9/11 Commission’s recommendation was made by
President George W. Bush on August 27, 2004, when he issued E.O. 13353
establishing the President’s Board on Safeguarding Americans’ Civil Liberties.4
Located in the Department of Justice and chaired by the Deputy Attorney General,
this 20-member board consisted largely of senior attorneys from the Departments of
1 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report (Washington: GPO, 2004), p. 395.
2 Ibid., pp. 394-395.
3 U.S. Advisory Panel to Assess Domestic Response Capabilities for Terrorism Involving
Weapons of Mass Destruction, V. Forging America’s New Normalcy: Securing Our
Homeland, Preserving Our Liberty (Arlington, VA: Rand Corporation, 2003), pp. 22-23.
4 3 C.F.R., 2004 Comp., pp. 211-213.
Defense, Justice, and State, Central Intelligence Agency (CIA), National Security
Agency, and Office of Management and Budget, as well as a few senior
administrative officials from the Departments of Homeland Security and the Treasury
and the CIA. The directive specified the following policy: “The United States
Government has a solemn obligation, and shall continue fully, to protect the legal
rights of all Americans, including freedoms, civil liberties, and information privacy
guaranteed by Federal law, in the effective performance of national security and
homeland security functions.”5 Among the functions prescribed for the board were
advising the President on effective means to implement this policy; periodically
requesting reports from the departments and agencies concerning policies and
procedures that ensure implementation of this policy; recommending to the President
policies, guidelines, and other administrative actions, technologies, and legislation
to implement this policy; and obtaining information and advice relating to this policy
from representatives of entities or individuals outside the federal executive branch.
The 108th Congress also responded to the commission’s recommendation in the
course of developing intelligence reform legislation. A Senate bill (S. 2845), among
other provisions, mandated the establishment of a Privacy and Civil Liberties
Oversight Board (PCLOB) within the Executive Office of the President (EOP). Its
chair and four additional members would be appointed by the President with Senate
confirmation for six-year terms. These provisions regarding the board remained in
the bill, which the Senate adopted in amended form on a 96-2 vote on October 6,
The House counterpart bill (H.R. 10), as introduced, made no provision for a
PCLOB. The version of the bill ordered reported by the Committee on the Judiciary
included a provision, added during markup, establishing a PCLOB very similar to the
one which would have been created by the Senate measure (S. 2845), except it would
have been an independent agency within the executive branch. This provision,
however, was omitted from the version of the bill reported from the Committee on
Rules on October 7.6 The version of the House bill adopted on a 282-134 vote on
October 8 made no provision for a civil liberties oversight board.
The conference committee version of the intelligence reform legislation retained
the mandate for a PCLOB.7 Located within the EOP, the board would consist of a
chair, vice chair, and three additional members, all appointed by, and serving at the
pleasure of, the President. Nominees for the chair and vice chair positions would be
subject to Senate approval. Although the board would have most of the review and
advice responsibilities contained in the Senate-adopted version of the legislation, it
would not have subpoena power, but was authorized to request the assistance of the
Attorney General in obtaining desired information from persons other than federal
departments and agencies. On December 7, 2004, the House, on a 336-75 vote,
5 Congressional Record, daily edition, vol. 150, October 7, 2004, pp. H8726-H8792.
6 See ibid., October 7, 2004, pp. H8726-H8792.
7 See U.S. Congress, House Committee of Conference, Intelligence Reform and Terrorism
Prevention Act of 2004, report to accompany S. 2845, 108th Cong., 2nd sess., H.Rept. 108-
agreed to the conference committee report; the Senate gave its approval the following
day on an 89-2 vote. On December 17, President George W. Bush signed the
legislation into law.8
As initially chartered, the PCLOB was vested with responsibilities in three
areas. First, for “the purpose of providing advice to the President or to the head of
any department or agency of the executive branch,” the board was directed to:
(A) review proposed regulations and executive branch policies related to efforts
to protect the Nation from terrorism, including the development and adoption of9
information sharing guidelines [authorized elsewhere in the statute];
(B) review the implementation of laws, regulations, and executive branch
policies related to efforts to protect the Nation from terrorism, including the
implementation of information sharing guidelines [authorized elsewhere in the
(C) advise the President and the head of any department or agency of the
executive branch to ensure that privacy and civil liberties are appropriately
considered in the development and implementation of such regulations and
executive branch policies; and
(D) in providing advice on proposals to retain or enhance a particular
government power, consider whether the department or agency, or element of the
executive branch concerned has explained —
(i) that there is adequate supervision of the use by the executive
branch of the power to ensure protection of privacy and civil liberties;
(ii) that there are adequate guidelines and oversight to properly
confine the use of the power; and
(iii) that the need for the power, including the risk presented to the
national security if the Federal Government does not take certain actions,10
is balanced with the need to protect privacy and civil liberties.
Second, the PCLOB was to “continually review”:
(A) regulations, executive branch policies, and procedures (including the
implementation of such regulations, policies, and procedures), related laws
pertaining to efforts to protect the Nation from terrorism, and other actions by the
executive branch related to efforts to protect the Nation from terrorism to ensure
that privacy and civil liberties are protected; and
(B) the information sharing practices of the departments, agencies, and elements
of the executive branch to determine whether or not such practices appropriately
protect privacy and civil liberties and adhere to the information sharing
guidelines [authorized elsewhere in the statute] and to other applicable laws,
8 P.L. 108-458; 118 Stat. 3638.
9 The reference is to Sec. 1016 and the creation of the Information Sharing Environment
(ISE) by the President.
10 118 Stat. 3684.
regulations, and executive branch policies regarding the protection of privacy11
and civil liberties.
Third, the board was to “ensure that concerns with respect to privacy and civil
liberties are appropriately considered in the implementation of laws, regulations, and12
executive branch policies related to efforts to protect the Nation against terrorism.”
The PCLOB, however, was not vested with potent authority to obtain
information relative to the execution of these responsibilities. Instead of subpoena
power to compel the production of information, documents, reports, answers,
records, accounts, papers, or other documentary and testimonial evidence from
entities other than departments, agencies, and elements of the federal executive
branch, it could request the assistance of the Attorney General to obtain such
material. The Attorney General was authorized to exercise a discretion in this regard,
“and may take such steps as appropriate to ensure compliance” with the board’s13
In the case of departments, agencies, and elements of the federal executive
branch “unreasonably” refusing to furnish or otherwise not providing information
sought by the PCLOB, the board was authorized to “report the circumstances to the
head of the department or agency concerned without delay.” In such instances, the
department or agency head “shall ensure compliance with such request” when, in his
or her determination, “the requested information or assistance may be provided to the
Board in accordance with applicable law.” Allowance was also made for the Director
of National Intelligence to override PCLOB information requests “to protect the
national security interests of the United States,” and for the Attorney General to do
the same “to protect sensitive law enforcement or counterterrorism information or14
No nominations to membership positions on the PCLOB were made in the early
weeks of 2005, and the President’s initial FY2006 budget documents contained no
request for funds for the panel, although a later justification document requested
$750,000.15 In mid-May, a bipartisan group of Senators sent a letter to White House
Chief of Staff Andrew H. Card, Jr., asking for a timetable and details on how the
membership and staff of the board would be put in place. The letter also noted that
the proposed budget for the board was well below the $13 million sought for the
Office of Civil Rights and Civil Liberties at the Department of Homeland Security,
the $39 million requested for the Office of the Trade Representative, and the $4
million for the Council of Economic Advisers. A White House spokesman indicated
11 118 Stat. 3685.
13 118 Stat. 3686.
15 U.S. Office of Management and Budget, Executive Office of the President: Fiscal Year
that “the hope is to move quickly” on the appointment of board members.16 On June
10, the White House announced that President Bush would nominate Carol Dinkins
to be chair and Alan Charles Rauls to be vice chair of the board, both subject to
Senate approval. The President also would name Lanny Davis, Theodore Olsen, and
Francis Taylor to serve as members of the board.
On December 5, 2005, the former members of the 9/11 Commission issued a
final report on the actions taken by the federal government to implement the
recommendations of the panel. The report saw “little urgency” in the creation of the
PCLOB and noted that, while the President had nominated individuals to its
leadership positions in June, “the Senate has not confirmed them.” Furthermore,
funding for the board was regarded to be “insufficient,” and “no meetings have been
held, no staff named, no work plan outlined, no work begun, no office established.”17
Eventually, Dinkins and Rauls were confirmed by the Senate on February 17,
2006. Davis subsequently resigned from the board on May 14, 2007, because, as he
indicated in his letter of resignation, he felt the board members had interpreted their
oversight responsibilities too narrowly and that they had not exercised adequate
independence when they accepted extensive redlining by Administration officials of
the board’s first report to Congress.18 A June 2007 report by the House Committee
on Appropriations took issue with the editing of the board’s first report to Congress,
and offered the following comment.
The Committee is concerned about the extensive editing made by the
Administration to the first report to Congress of the Board, the motivation for
those edits, and how such editing may be detrimental to the independence of the
Board. The Committee believes that the Board must have the authority and
independence to thoroughly review, assess, and report accurately on privacy and
civil liberties matters. The Committee strongly urges the Administration to19
respect the Board’s mission and to refrain from substantive editing of its work.
As established, the PCLOB, to some, appeared to be a presidential appendage,
devoid of the capability to exercise independent judgment and assessment or to
provide impartial findings and recommendations. It was located in the EOP, an
enclave of agencies immediately serving the President. Only two of its five members
were subject to Senate approval, and all five served at the pleasure of the President.
16 Eric Lichtblau, “Senators Say Bush Lags on Creating Terror Panel,” New York Times,
May 15, 2005, p. 25.
17 9/11 Public Discourse Project, Final Report on 9/11 Commission Recommendations
(Washington: December 5, 2005), p. 3, available at [http://www.9-11pdp.org].
18 John Solomon and Ellen Nakashima, “White House Edits to Privacy Board’s Report Spur
Resignation,” Washington Post, May 15, 2007, p. A5.
19 U.S. Congress, House Committee on Appropriations, Financial Services and General
Government Appropriations Bill, 2008, report to accompany H.R. 2829, 110th Cong., 1st
sess., H.Rept. 110-207 (Washington: GPO, 2007), p. 33.
Its advice was to be “to the President or to the head of any department or agency of
the executive branch.”20Although it was to report to Congress at least annually, it was
not clear if its members or chair would testify before congressional committees or if
the board could otherwise assist Congress. The board’s budget was presented as an
account within the funding request for the White House Office (WHO), suggesting
that it was a subunit of the WHO (although the board’s chartering legislation placed
it in the EOP, making it a coequal agency to the WHO).
That there was dissatisfaction with the status of the PCLOB was evidenced in
March 2005, when Representative Carolyn B. Maloney introduced, for herself and
42 bipartisan cosponsors, legislation (H.R. 1310) which would have reconstituted the
PCLOB as an independent agency within the executive branch, made the
appointment of its members subject to Senate confirmation, and limited its partisan
composition to not more than three members being from the same political party.21
Almost one year later, a similar bill (H.R. 5000) was introduced by Representative
Christopher Shays for himself and 13 bipartisan cosponsors. These bills, each
referred to multiple committees, received no further attention during the 109th
The 110th Congress returned to the status of the PCLOB when legislation was
developed to implement the remaining recommendations of the 9/11 Commission.
The House bill (H.R. 1), introduced on January 5, 2007, sought to reconstitute the
board as an independent agency and subjected its five members to Senate approval
and to six-year terms. The Senate counterpart proposal (S. 4) kept the board in the
EOP, but also subjected its five members to Senate confirmation and to six-year
terms. Ultimately, the House preference for the PCLOB to be reconstituted as an
independent agency within the executive branch prevailed. President Bush signed
the legislation, the Implementing Recommendations of the 9/11 Commission Act
(IR9/11CA), into law on August 3, 2007.22
Title VIII of the IR9/11CA reconstituting the PCLOB set out the following
findings which underlie the reestablished board in its new independent status.
(1) In conducting the war on terrorism, the Government may need
additional powers and may need to enhance the use of its existing powers.
(2) This shift of power and authority to the Government calls for an
enhanced system of checks and balances to protect the precious liberties that are
vital to our way of life and to ensure that the Government uses its powers for the
purposes for which the powers were given.
(3) The National Commission on Terrorist Attacks Upon the United States
correctly concluded that “The choice between security and liberty is a false
20 118 Stat. 3684.
21 See Congressional Record, daily edition, vol. 151, Mar. 16, 2005, p. E456.
22 P.L. 110-53; 121 Stat. 266.
choice, as nothing is more likely to endanger America’s liberties than the success
of a terrorist attack at home. Our history has shown us that insecurity threatens
liberty. Yet, if our liberties are curtailed, we lose the values that we are23
struggling to defend.”
The reconstituted PCLOB was also given two purposes.
(1) 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
(2) ensure that liberty concerns are appropriately considered in the
development and implementation of laws, regulations, and policies related to24
efforts to protect the Nation against terrorism.
These purposes, given further elaboration in the restated functions of the board,
suggested that it should be concerned with the actions and policy outcomes of both
the executive branch and Congress. “The members of the Board,” it was also
specified, “shall appear and testify before Congress upon request.”25
In general, Section 801(d) of the title indicated that the amendments contained
in Section 801(a) and (b) changing the status, mission, and operations of the PCLOB
take effect 180 days after the date of the enactment of the IR9/11CA, which would
be January 30, 2008, as the statute was signed into law on August 3, 2007. Section
801(c) of the title contained transition provisions for the board as it shifted from EOP
agency status to being an independent agency within the executive branch. It stated
!Any individual who is a member of the PCLOB on the date of the
enactment of the IR9/11CA may continue to serve on the board until
180 days after the date of the enactment of the act. (There is
presently one vacancy on the board due to the resignation of Lanny
!The term of any individual who is a member of the PCLOB on the
date of the enactment of the IR9/11CA shall terminate 180 days after
the date of the enactment of the act.
!The President and the Senate shall take such actions as are necessary
for the President, by and with the advice and consent of the Senate,
to appoint members to the PCLOB as constituted under the
amendments made by Section 801(a), which include provisions for
the initial members to serve terms of two, three, four, five, and six
years, with the term of each to be designated by the President. Not
more than three members of the board shall be members of the same
23 121 Stat. 352.
25 121 Stat. 353.
political party, and nominees to be members of the board “shall be
selected solely on the basis of their professional qualifications,
achievements, public stature, expertise in civil liberties and privacy,
and relevant experience.”26
The IR9/11CA authorized appropriations for the PCLOB in specific amounts
for FY2008 through FY2011, and for FY2012 “and each subsequent fiscal year”
authorized “such sums as may be necessary.”27 The PCLOB was initially funded
through the White House Office account in the Transportation, the Treasury, Housing
and Urban Development, the Judiciary, the District of Columbia, the Executive
Office of the President, and Independent Agencies Appropriations Act for FY2007.
It was then funded through the WHO in the Financial Services and General
Government Appropriations Act for FY2008. The Financial Services bill accounts
were included in the Consolidated Appropriations Act, 2008, in Division D, where
the PCLOB was a separate account among EOP entities in Title II, receiving $2
million. The President’s budget for FY2009 requested $2 million for the PCLOB,
which was the same amount appropriated for the board for FY2008 when it was an
EOP agency, and positioned the account for the independent agency in the Financial
Services and General Government appropriations bill.28 House appropriators
recommended $1 million for the PCLOB for FY2009. In their approved draft report,
appropriators expressed strong support for the mission of the board, and indicated
they would “consider additional funding as necessary at the appropriate time.” They
noted that the board has not been fully reconstituted as an independent agency and,
therefore, “the new entity’s funding requirements have not been firmly established
or justified to the Committee [on Appropriations].” The board was urged, “once
reconstituted, to present the Committee with a detailed budget justification as quickly
Three presidential nominations to the PCLOB were received in the Senate on
February 27, 2008. They included Daniel W. Sutherland, Officer for Civil Rights
and Civil Liberties at the Department of Homeland Security, to serve a six-year term
as chair of the board; Ronald D. Rotunda, professor of law at George Mason
University, to serve a four-year term as a member of the PCLOB; and Francis X.
Taylor, a former member of the board, to a serve a two-year term. The nominations
were referred to the Senate Committee on the Judiciary. By late November, as the
110th Congress moved toward final adjournment, no further action had been taken on
26 121 Stat. 355.
27 121 Stat. 357.
28 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal
Year 2009 — Appendix (Washington: GPO, 2008), p. 1222.
29 U.S. Congress, House Committee on Appropriations, Financial Services and General
Government Appropriations Bill, 2009, committee print, 110th Cong., 2nd sess. (Washington:
GPO, 2008), p. 90.
U.S. Privacy and Civil Liberties Oversight Board, First Annual Report to Congress:
March 2006-March 2007 (Washington: April 20, 2007). 42 p.
——. Second Annual Report to Congress: March 2007-January 2008 (Washington:
January 30, 2008). 35 p.
——. Issue Report: Terrorist Watch List Redress Activities (Washington: September
These text of these reports, as well as prepared testimony, letters, and statements
by board members, are available at [http://www.whitehouse.gov/privacyboard/].