Order Code RS21906
Updated December 22, 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 was 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 realization, and will not be updated.
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 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
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. It was eventually terminated by the National War
Agency Appropriation Act of 1946.5
Another prototype might be found in 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
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.”7 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
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 U.S. National Commission on Terrorist Attacks Upon the United States,
The 9/11 Commission
Report, p. 395.
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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.8 In 1993, with the reestablishment of PFIAB by E.O. 12863, the IOB was
reconstituted as a committee of the board.9
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 included 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 would be balanced in terms
of political interests, drawn from certain professions, and 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
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.”10 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.11 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.
8 3 C.F.R., 1981 Comp., pp. 216-217.
9 3 C.F.R., 1993 Comp., pp. 632-634.
10 U.S. National Commission on Terrorist Attacks Upon the United States,
The 9/11 Commission
Report, pp. 394-395.
11 See 116 Stat. 2253.
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On August 27, 2004, President George W. Bush issued E.O. 13353 establishing the
President’s Board on Safeguarding Americans’ Civil Liberties within the Department of
Justice.12 Chaired by the Deputy Attorney General and composed of 19 other senior
counsels and leaders largely from within the intelligence and homeland security
communities, the board may advise the President regarding civil liberties policy, gather
information and make assessments regarding such policy and its implementation, make
recommendations to the President, refer information about possible violations of such
policy by a federal official or employee for prompt action, enhance cooperation and
coordination among federal departments and agencies in implementing such policy, and
undertake other efforts to protect civil liberties as the President may direct.
Legislative Implementation
Among the initial bills offered to implement the recommendations of the 9/11
Commission was one introduced on September 7, 2004, by Senator John McCain (S.
2774).13 Title IX would have established a five-member Privacy and Civil Liberties
Oversight Board within the Executive Office of the President. While board members
were to be appointed by the President with Senate confirmation, and would not
concurrently hold any other federal government position, their term of office was not
specified, suggesting that they served at the pleasure of the President. Among the
functions specified for the board to perform were the provision of advice and counsel to
the President and the executive departments and agencies on policy development and
implementation related to protection of the nation from terrorism; provision of advice and
counsel to the President and the executive departments and agencies to ensure that privacy
and civil liberties were appropriately considered in the development and implementation
of terrorism policy; continual review of such policy and its implementation, including
information sharing practices, to ensure that privacy and civil liberties were protected;
receipt and review of reports from privacy and civil liberties officers prescribed elsewhere
in the legislation; and periodic submission, not less than semiannually, of reports to
Congress and the President. Read the first time, the bill was placed on the Senate
legislative calendar. A companion bill was introduced in the House on September 9 by
Representative Christopher Shays (H.R. 5040) for himself and 32 cosponsors, and was
referred to 10 committees. No further action was taken on either proposal.
A somewhat similar bill to implement the recommendations of the 9/11 Commission
was offered by Representative Nancy Pelosi (H.R. 5024) on September 8. Title V
directed the President to determine guidelines for acquiring, accessing, using, and sharing
information about individuals among federal, state, and local governments, as well as the
private sector. It also would have established “within the executive branch a board to
oversee adherence to” the President’s afore mandated guidelines and “the commitment
the Government makes to defend civil liberties.” No additional details regarding the
board were specified. The bill was referred to 11 House committees, but no further action
was taken on it.
12
Federal Register, vol. 69, Sept. 1, 2004, p. 53585-53587.
13 See
Congressional Record, daily edition, vol. 150, Sept. 8, 2004, pp. S8869-S8915.
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Selected by the Senate majority and minority leaders to lead the effort to implement
the recommendations of the 9/11 Commission legislatively, Senator Susan Collins, the
chair of the Committee on Governmental Affairs, and Senator Joseph Lieberman, the
ranking minority member on the panel, initially discussed the general terms of their
reform bill at a September 15, 2004, press conference. One of its components was to be
a civil liberties oversight board.14 The text of the legislation was made public in draft
form on September 20. The Committee on Governmental Affairs began a markup of the
Collins proposal on September 21, and completed their action the following day when the
committee ordered the amended measure favorably reported as an original bill.
Introduced by Senator Collins as an original bill on September 23, the legislation (S.
2840) was denominated the National Intelligence Reform Act.15 The proposal was also
introduced a second time that day, with Senator Lieberman as a cosponsor (S. 2845). At
the end of the day, a unanimous-consent agreement was reached providing that, on
September 27, the Senate would begin consideration of the latter bill (S. 2845). A bill
very similar to the Senate vehicle was introduced in the House on September 24 by
Representative Christopher Shays with bipartisan support (H.R. 5150), but no further
action was taken on this measure
As the Senate began consideration of the reform bill (S. 2845) on September 27, the
legislation, among other provisions, mandated the establishment of a Privacy and Civil
Liberties Oversight Board within the Executive Office of the President (EOP). Its chair
and four additional members were to 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.
In the House, the vehicle for implementing the recommendations of the 9/11
Commission was introduced by Representative Dennis Hastert on September 24 and was
denominated the 9/11 Recommendations Implementation Act (H.R. 10). The bill drew
upon a September 16 draft proposal for strengthening the intelligence capabilities of the
federal government which the President had submitted to Congress, with additional input
from committee chairs who had held hearings on the findings and recommendations of
the 9/11 Commission during August and the early weeks of September. As a result, the
bill contained various provisions not found in the counterpart Senate bill (S. 2845), as
introduced. The House bill was referred to the Committees on Armed Services,
Education and the Workforce, Energy and Commerce, Financial Services, Government
Reform, International Relations, the Judiciary, Rules, Science, Transportation and
Infrastructure, and Ways and Means, as well as the Permanent Select Committee on
Intelligence and the Select Committee on Homeland Security. Five of these panels —
Armed Services, Financial Services, Government Reform, Intelligence, and Judiciary —
conducted markups and ordered the resulting versions of the legislation reported on
September 29.
14 Amy Klamper and John Stanton, “Intelligence: ... As Collins, Lieberman Unveil a Response
to 9/11 Panel,”
CongressDailyPM, Sept. 15, 2004, available at [http://nationaljournal.com/pubs/
congressdaily/dj040915.htm]; Philip Shenon, “Intelligence Proposals Gain in Congress,”
New
York Times, Sept. 16, 2004, p. A15.
15 See
Congressional Record, daily edition, vol. 150, Sept. 23, 2004, pp. S9615-S9638.
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As introduced, the House bill (H.R. 10) mandated a Civil Liberties Protection Officer
— to be appointed by a new National Intelligence Director (NID) — within the office of
the NID to serve as a civil liberties and privacy overseer of the intelligence community,
but no provision was made for a civil liberties oversight board. The version of the bill
ordered reported by the Committee on the Judiciary included a provision, added during
markup, establishing a Privacy and Civil Liberties Oversight Board very similar to the one
created by the Senate counterpart measure (S. 2845), except it would have been an
independent agency within the executive branch and not located in the EOP. This
provision, however, was omitted from the version of the bill reported from the Committee
on Rules on October 7.16 The board, constituted as an EOP agency, would have been
included in the House bill pursuant to an amendment substituting the text of the Senate
counterpart bill, as introduced (S. 2845), and the earlier McCain bill, as introduced (S.
2774),17 but this amendment was defeated on a 203-213 vote.18 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 Privacy and Civil Liberties Oversight Board.19 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. While 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 may request the assistance of the
Attorney General in obtaining desired information from persons other than federal
departments and agencies. Also, the eight privacy and civil liberties officers that the
Senate-adopted version of the legislation would have established within specified
departments and agencies were addressed in a sense of Congress provision stating “that
each executive department or agency with law enforcement or antiterrorism functions
should designate a privacy and civil liberties officer.” On December 7, the House, on a
336-75 vote, agreed to the conference committee report; the Senate gave its approval the
following day on an 89-2 vote, clearing the intelligence reform legislation for the
President’s signature. On December 17, President George W. Bush signed the legislation
into law.20
16 See ibid., Oct. 7, 2004, pp. H8726-H8792.
17 For the text of the amendment, see U.S. Congress, House Committee on Rules,
Providing for
Consideration of H.R. 10, 9/11 Recommendations Implementation Act, H.Rept. 108-751, a report
to accompany H.Res. 827, 108th Cong., 2nd sess. (Washington: GPO, 2004), pp. 5-152;
Congressional Record, daily edition, vol. 150, Oct. 7, 2004, pp. 8792-H8833.
18
Congressional Record, daily edition, vol. 150, Oct. 7, 2004, p. H8850.
19 See U.S. Congress, House, Committee of Conference,
Intelligence Reform and Terrorism
Prevention Act of 2004, H.Rept. 108-796, a report to accompany S. 2845, 108th Cong., 2nd sess
(Washington: GPO, 2004).
20 P.L. 108-458; 118 Stat. 3638.