Some background on PCLOB.
Maggief: Some bio facts in these links on the principals.
JoeProBono: From your excellent link:
PCLOB [out-dated, but useful, Wiki entry: Privacy & Civil Liberties Oversight Board] is to consist of a chairman plus four other members, each serving a 6-year term.
David Medine, Chairman (confirmed May 2013)
James Dempsey (confirmed on Aug 2, 2012)
Elisebeth Cook (confirmed on Aug 2, 2012)
Rachel Brand (confirmed on Aug 2, 2012)
Patricia Wald (confirmed on Aug 2, 2012)
Why didn't Senate confirm Medine back in 2012?
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What it is: The Implementing Recommendations of the 9/11 Commission Act of 2007 (.pdf) established the Privacy and Civil Liberties Oversight Board as an independent agency within the executive branch. The law says PCLOB's purpose is 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
- 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.
What it will do: The 2007 law tasks PCLOB with a range of activities, including to
- review proposed legislation, regulations and policies related to terrorism and information sharing;
- advise the executive branch to ensure that its actions take into account privacy and civil liberties;
- submit at least two reports per year to Congress and the president in an unclassified form to the greatest extent possible; and
- hold public hearings or otherwise inform the public of its activities.
Reports: PCLOB's reports are supposed to describe its major activities, along with findings and recommendations. It must note any proposals that it advised against that the government implemented anyway. It also must note the times that the attorney general denied its requests for subpoenas.
Subpoenas and access: PCLOB can have access to executive branch records and interview any of its personnel. It also can request information or assistance from state, local and tribal governments.
The majority of PCLOB's members can vote to request that the attorney general subpoena people to produce records or testimonial evidence. Within 30 days of the request, the attorney general must either issue the subpoena or explain in writing why it won't. When the latter happens, PCLOB must notify the House and Senate judiciary committees within another 30 days.
The American Civil Liberties Union has criticized the law for not giving PCLOB its own subpoena power. That it must go through the attorney general is a "cumbersome barrier and a real threat to its independence," the ACLU's Chris Calabrese wrote in May.
First incarnation: PCLOB originally existed within the Executive Office of the President, as established by the Intelligence Reform and Terrorism Prevention Act of 2004 (.pdf). But it was reconstituted in 2007 as a result of concerns about its independence.
Years of vacancy: The Senate never acted on President Bush's 2008 nominations, and President Obama didn't announce a full slate of nominees until December 2011, four of whom the Senate confirmed in August.
Current members: PCLOB is to consist of a chairman plus four other members, each serving a 6-year term. The Senate confirmed James Dempsey, Elisebeth Cook, Rachel Brand and Patricia Wald on Aug. 2, but did not act on the nominee for chairman, David Medine.
One crucial vacancy remains: The lack of a chairman will limit PCLOB, particularly because the law charges the chairman with hiring the board's staff. Peter Swire, a senior fellow at the Center for American Progress, told FierceHomelandSecurity, "The four confirmed members of the board are very capable individuals. The real work of oversight, however, requires staff to be in place." Swire served as the Clinton administration's chief counselor for privacy from 1999 to 2001.
While PCLOB cannot hire staff without a chairman, the law does say any federal employee can be detailed to PCLOB without reimbursement. PCLOB can also hire consultants. Neither of those provisions requires the chairman's involvement.
PCLOB can also meet without its chairman, so long as a majority of its members call for a meeting. Three members constitutes a quorum.
What PCLOB could be doing now: The FISA Amendments Act of 2008 (.pdf) is set to expire on Dec. 31, 2012. But "right now Congress is legislating in the dark" as it considers reauthorization, said Greg Nojiem, director of the Center for Democracy & Technology's project on freedom, security and technology. A functional PCLOB could shed light on how that law has been used so far.
Nojiem said he'd also like to see whether the nation's fusion centers are monitoring political dissent instead of just monitoring threats.
During an April hearing where the five PCLOB nominees testified before the Senate Judiciary Committee, senators asked many questions about how they'd approach cybersecurity. But Nojiem predicted that PCLOB will instead start on issues that are strictly related to terrorism, at least until it receives a clearer mandate about how its role pertains to cyber issues.
Such a mandate may come if Congress passes cybersecurity legislation, as it has tried and failed to do recently.
PCLOB should also balance its public and behind-the-scenes roles, Nojiem added. He offered the 9/11 Commission as a model of the impact that could be made if PCLOB keeps the public informed.
"But it also has to gain the trust of executive branch officials if it's going to do its work," he said.
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Scrubbed reference (found on WayBack) to another PCLOB meeting:
Privacy and Civil Liberties Oversight Board Meets March 5. Can You Find Your Invitation?
Federal Register, Feb 25, 2013 [PDF file]
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
[Notice–PCLOB–2013–02; Docket No. 2013–0004; Sequence No. 2]
Sunshine Act Meeting (lol)
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April 18, 2013 Senate Judiciary Committee hearing.
PCLOB nominees ready to hear the government's case for security measures
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Federal Register, June 5, 2012, PCLOB: Final Rule
SUMMARY: The Privacy and Civil Liberties Oversight Board is issuing this rule to provide information to the public about the Board's organization, function, and operations.
DATES: This rule is effective June 5, 2013.
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Two more names in June 7, 2013 PCLOB letter to DNI Clapper signed by Medine
Susan Reingold [Chief Administrative Officer]
cc to all the PCLOB board members and also Alex Joel, ODNI Civil Liberties and Privacy Office
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Another article/thread:
Obama meets with privacy watchdog panel … in private
“Why didn’t Senate confirm Medine back in 2012?”
http://www.grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=45784
May 7, 2013
Grassley Statement on David Medine to be Chairman, Privacy and Civil Liberties Oversight Board
Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
the Nomination of David Medine to be
Chairman, Privacy and Civil Liberties Oversight Board
Tuesday, May 7, 2013
Mr./Madam President, I oppose the nomination of David Medine to be the Chairman of the Privacy and Civil Liberties Oversight Board, which is commonly referred to as the PCLOB.
Mr. Medine was nominated for this position during last Congress and the Judiciary Committee, where I serve as the Ranking Member, held a hearing on his nomination in April 2012.
At the hearing, I asked a number of questions about the various national security statutes that the Board is tasked with overseeing. This included questions about the Foreign Intelligence Surveillance Act and the PATRIOT Act.
Specifically, I asked for his views on these laws. Unfortunately, the responses I received failed to provide his views. He simply stated that he would balance the views of the government against the board’s mandate to review privacy.
I also asked Mr. Medine about his views on the use of law enforcement versus military authorities for combatting terrorism.
I was disappointed that he failed to answer a basic yes or no question about National Security law: “Do you believe that we are engaged in a war on terrorism?”
Instead, of a simple yes or no, he opted for a more limited answer that military power is permissible in appropriate cases.
This technical answer gives me pause—especially in light of the continued threat we face from international terrorist organizations.
Perhaps the most concerning response he provided was to another simple constitutional law question. I asked all the board nominees an important question about the use or profiling based upon country of origin for immigration purposes.
The Constitution provides broad discretion to the government for purposes of immigration. Each year the government places quotas or caps on how many and what types of visas are allowed for each particular country.
For example, if we face a threat from an unfriendly nation, it is important that we have the ability to limit immigration from that country. At the least, immigration and customs agents and consular officers should be able to make decisions of admissibility solely on country of origin.
I asked this same question to the other four current members of the board. Two Democrats and two Republicans. They all answered the same way, that foreign nationals do not have the same constitutional or statutory rights as citizens and therefore U.S. officials should be able use this as a factor in admissibility determinations.
In contrast to the other four nominees, Mr. Medine argued that use of country of origin as the sole purpose was “inappropriate”.
Specifically, Mr. Medine noted that it would be “inappropriate” for the federal government to profile foreign nationals from high-risk countries based solely upon the country of origin.
This is troubling.
As the other four nominees noted, foreign nationals do not have the same constitutional or statutory rights as U.S. persons and the government may, lawfully and appropriately, use country of origin as a limiting factor for purposes of admission to the United States.
I think this is especially concerning given the recent attacks in Boston and the concerns surrounding potential holes in our immigration system related to student visa overstays.
Say the government learns of a terrorist plot undertaken by individuals from a specific country. Under the view advocated by Mr. Medine, excluding all individuals from that nation, even for a defined period of time, would be “inappropriate”.
Instead, under his view, even faced with this threat, it would only justify “heightened scrutiny of visitors from that country” when the individual was “linked to other information about the plot.”
This is a dangerous view of our government’s authority to control admission into the country.
Terrorism is fresh on everyone’s mind following the recent attacks in Boston, but the need to remain vigilant against a terrorist threat should not rise and fall based upon our proximity to an attack.
The terrorist attacks on 9/11 changed the way the government viewed terrorism and those who want to kill Americans.
We are now nearly twelve years released from 9/11. Some may believe that we now have the means in place for restricting admission based only upon specific intelligence of a plot.
But that view is the type of thinking that allows us to let down our guard.
Those who seek to kill Americans are not letting down their guard and are always looking for ways to attack Americans and our way of life.
We can see this with the new tactics that they use, such as the failed underwear bombing, the attempted Times Square Bombing, and the recent attacks in Boston.
It is through this lens that I view Mr. Medine’s answer and why I oppose his nomination to a board overseeing critical national security laws.
While I agree we should always work to ensure that intelligence information is utilized in a manner most likely to achieve the desired result, there are scenarios where we may need to block entry to all members of a certain country.
For example, would Mr. Medine’s view apply to wartime situations?
Would we have to admit those whose country was at war with the U.S.?
I think his answers point to a dangerous worldview that is out of touch with the threat we face from global terrorist organizations that seek to kill Americans.
It is thinking that deviates from basic constitutional principles our government was founded on. Namely, the ability to protect our citizens by limiting entry into the country.
This is a very serious matter given the board’s oversight of national security law.
Given these concerns, I joined my colleagues in opposing Mr. Medine’s nomination when the Judiciary Committee voted on him in February.
That party line vote mirrored the same party line vote from the previous Congress—even though the Committee now has different members.
Above all, I fear that a nomination that is as polarizing as this could cloud the legitimate work of the board.
This board is tasked with reviewing some of the most sensitive national security matters we face.
If the board issues a partisan decision, led by Mr. Medine, it will be discredited because of these controversial fundamental beliefs Mr. Medine holds.
These national security issues are already polarizing—just look to any debate in Congress on FISA or the PATRIOT Act. Adding partisan fueled reports to the fire would only exacerbate these difficult matters.
Given these concerns, I oppose Mr. Medine’s nomination and urge my colleagues to do the same. A vote against this nominee is a vote to preserve the legitimate tools to help keep America safe.
I yield the floor.
Thank you.