Order Code RS21906
August 9, 2004
CRS Report for Congress
Received through the CRS Web
9/11 Commission Recommendations: A Civil
Liberties Oversight Board
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Summary
Among the recommendations made by the National Commission on Terrorist
Attacks Upon the United States (9/11 Commission) in its final report is the creation of
a board within the executive branch to oversee adherence to guidelines on, and the
commitment to defend, civil liberties by the federal government. This report examines
this recommendation and its implications, and will be updated as events warrant.
The final report of the 9/11 Commission 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 is 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 call 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
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.
Congressional Research Service ˜ The Library of Congress

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for Terrorism Involving Weapons of Mass Destruction, chaired by former Virginia
Governor James S. Gilmore III.3
Background
Traditionally, in the American governmental experience, the preservation of civil
liberties — those rights and privileges specified in, or thought to be implied by, the
Constitution — has been pursued in, and determined by, largely the federal courts.
Prototypes of the civil liberties oversight board recommended by the 9/11 Commission
might be found in the civil rights policy area. During World War II, for example, the
Committee on Fair Employment Practice was created as a subunit of the Office for
Emergency Management within the Executive Office of the President. Established by
E.O. 9346 of May 27, 1943, the panel investigated complaints of alleged discrimination
involving race, creed, color, or national origin, in federal agencies, industries performing
federal contracts or otherwise essential to the war effort, and unions of employees in such
industries.4 The committee’s jurisdiction did not, however, extend to the armed forces.
It also had some fact-finding and policy responsibilities. It was composed of six members
representing labor and management. Weakened by a 1943 determination of the
Comptroller General that antidiscrimination orders in government contracts could be
ignored, the committee came under strong criticism from some quarters of Congress as
the war came to a close. It was eventually terminated by the National War Agency
Appropriation Act of 1946.5
Another prototype might be the eight-member United States Commission on Civil
Rights, an independent agency within the executive branch that makes findings of fact,
but has no enforcement authority. The commission’s findings and recommendations are
submitted to the President and Congress for consideration and appropriate action. The
panel collects and studies information on discrimination or denials of equal protection of
the laws because of race, color, religion, sex, age, disability, or national origin; or in the
administration of justice in such areas as voting rights, enforcement of federal civil rights
laws, and equal opportunity in education, employment, and housing.6
A third prototype might be found in the Defense Privacy Board, established on April
8, 1975, by the Secretary of Defense to coordinate and direct all Department of Defense
(DOD) privacy activities. The board was originally assigned the responsibilities to
oversee and direct DOD’s initial implementation of the newly enacted Privacy Act of
1974.7 It did not, however, actually carry out any operational requirements of the Privacy
Act, but, instead, set policy, reviewed regulations, provided assistance, and oversaw
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., 1943-1948 Comp., pp 1280-1281.
5 59 Stat. 473.
6 See 42 U.S.C. § 1975-1975a; for a recent evaluation of the Commission, see U.S. General
Accounting Office, U.S. Commission on Civil Rights: More Operational and Financial Oversight
Needed, GAO Report GAO-04-18 (Washington: October 2003).
7 5 U.S.C. § 552a.

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implementation by DOD components. Currently, the board has responsibility for
oversight of the DOD privacy program, and ensures that the policies, practices, and
procedures of that program are premised on the requirements of the Privacy Act and other
pertinent authority. It also serves as the primary DOD policy forum for matters involving
the DOD privacy program, meeting as necessary to address issues of common concern so
as to ensure that uniform and consistent policy is adopted and followed by DOD
components. Chaired by the Director of Administration and Management, Office of the
Secretary of Defense, the board counts six other DOD official as members, along with
representatives so designated by the secretaries of the military departments.8
Finally, a model identified by the 9/11 Commission in its report is the Intelligence
Oversight Board (IOB) of the President’s Foreign Intelligence Advisory Board (PFIAB),
which, it was noted, “in the past, had the job of overseeing certain activities of the
intelligence community.”9 Established by E.O. 12334 of December 4, 1981, the three-
member IOB was responsible for informing the President of any intelligence activities that
any board member believed to be in violation of the Constitution, statutory law, or
presidential orders or directives; and forwarding to the Attorney General reports received
concerning intelligence activities that the board believed might be unlawful. The board
was authorized to conduct such investigations as it deemed necessary to carry out its
functions.10 In 1993, with the reestablishment of PFIAB by E.O. 12863, the IOB was
reconstituted as a committee of the board.11
Charter
When recommending the creation of a civil liberties oversight board, the 9/11
Commission offered no details on how this chartering would occur, or on the composition
or structure of the panel. Options for establishing the board include a statute legislated
by Congress, an executive order issued by the President, or an administrative directive by
an appropriate executive branch official other than the President. The chartering
instrument would specify the composition of the board, the manner in which its members
are selected and approved, and the basic administrative structure and procedures of the
board, as well as personnel and budget arrangements.
To provide the board with operational independence within the executive branch,
provision might be made in its charter that its membership is to be balanced in terms of
political interests, to be drawn from certain professions, and to serve staggered terms of
set duration. The budget request of the board might be submitted concurrently to the
Office of Management and Budget for inclusion in the President’s budget and to Congress
for its information. The board might be obligated to provide the President and Congress
with an annual report on its operations, and its leadership otherwise required — by
8 U.S. Department of Defense, “DOD Privacy Program,” Directive 5400.11 (Dec. 13, 1999),
available at [http://www.fas.org/irp/doddir/dod/d5400_11.htm].
9 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report, p. 395.
10 3 C.F.R., 1981 Comp., pp. 216-217.
11 3 C.F.R., 1993 Comp., pp. 632-634.

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specification in the charter or through the appointment approval process — to keep
Congress informed of board activities.
Mission
According to the report of the 9/11 Commission, the recommended civil liberties
oversight board would “oversee” department and agency adherence to (1) presidential
guidelines for information sharing, which “should safeguard the privacy of individuals
about whom information is shared”; and (2) guidelines confining the use of a government
power which “actually materially enhances security.” The board would also monitor “the
commitment the government makes to defend our civil liberties.”12 While Section 892
of the Homeland Security Act requires the President to prescribe homeland security
information sharing procedures, it is not clear if the commission’s reference to
“presidential guidelines” for information sharing pertains to the procedures mandated by
this section.13 Furthermore, the source of the guidelines confining the use of a
government power is not evident. Also, when such an oversight board is created, its
charter may include other specific or general oversight responsibilities in addition to those
provided by the 9/11 Commission.
How might the recommended civil liberties oversight board carry out its mission?
The following description of the activities of the United States Commission on Civil
Rights, with a staff of little over 70 personnel and a budget of about $9 million, may
provide a somewhat illustrative response to this question.
The Commission engages in studies concerning areas in which there may be
denials of civil rights and reports on these matters to the President and the Congress.
Hearings by the Commissioners are held to investigate and obtain information about
denials of civil rights. Conferences and open meetings are held by staff and State
Advisory Committees to gather data and issue reports providing information about
civil rights problems. In addition, the Commission appraises and reports on Federal
agencies’ enforcement of civil rights laws. Complaints alleging discrimination are
referred to the proper Federal agencies.
The Commission provides liaison with private groups, public groups, and the
media to provide civil rights information to Government officials, organizations, and
the public. The Commission issues publications and public service announcements
to discourage discrimination and denial of equal protection of the laws. The
Commission also provides a library resource to support civil rights research, studies,
hearings, and other Commission activities, and makes this information available to the
general public.14
12 U.S. National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report, pp. 394-395.
13 See 116 Stat. 2253.
14 U.S. Office of Management and Budget, Budget of the United States Government, Fiscal Year
2005: Appendix (Washington: GPO, 2004), p. 1093.

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Implementation
Legislation to implement the 9/11 Commission’s recommendation for a civil liberties
oversight board has not yet been introduced during the 108th Congress.

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