WASHINGTON, D.C. – U.S. Sen. Tom Udall (D-N.M.) today led a bipartisan call for an independent investigation into the National Security Agency’s (NSA) phone records and data collection programs by a key privacy and civil liberties panel originally recommended by the 9/11 Commission and strengthened through Udall’s efforts in the House of Representatives.
Udall sent a bipartisan letter to the Privacy and Civil Liberties Oversight Board, asking it to “make it an urgent priority to investigate the programs mentioned above and determine whether they (1) are conducted within the statutory authority granted by Congress, and (2) take the necessary precautions to protect the privacy and civil liberties of American citizens under the Constitution.”
The letter also asked that the board “provide an unclassified report on these issues, so that the public and the Congress can have a long overdue debate about these important privacy concerns.” The letter is also signed by 12 other Senators: Lisa Murkowski (R-AK), Jon Tester (D-MT), Dean Heller (R-NV), Mark Begich (D-AK), Maria Cantwell (D-WA), Chris Coons (D-DE), Mark Udall (D-CO), Martin Heinrich (D-NM), Max Baucus (D-MT), Brian Schatz (D-HI), Elizabeth Warren (D-MA) and Mazie Hirono (D-HI).
Also today, during a hearing before the full Senate Appropriations Committee on cybersecurity, Udall asked Director of the NSA General Keith Alexander to cooperate with any investigation conducted by the board into the NSA’s collection and analysis programs. General Alexander confirmed that the NSA would cooperate and reported the agency had met with the board the day before. Click here for a video of the exchange between Udall and General Alexander.
“It’s very, very difficult to have a transparent debate about secret programs, approved by a secret court issuing secret court orders based on secret interpretations of law,” Udall said at the hearing.
The Privacy and Civil Liberties Oversight Board was one of 41 recommendations made by the 9/11 Commission and was created by P.L. 108-45, the Intelligence Reform and Terrorism Prevention Act in 2004.
While the board was originally designed to provide independent oversight to protect Americans’ civil liberties, it was never fully funded or properly organized – something Udall called for repeatedly as a member of the House of Representatives.
In 2006, Udall, who voted against the Patriot Act in 2001, joined House colleagues in writing to then-President Bush and questioning the lack of funding and implementation of the board in the FY2007 budget proposal and subsequent actions.
Udall also pushed for legislation in the 109th and 110th Congresses to give the Board the full authority the 9/11 Commission originally intended.
This resulted in Congress finally strengthening the board through the Implementing Recommendations of the 9/11 Commission Act of 2007. Among other things, the legislation reconstitutes the board as an independent agency with more responsibilities, requires Senate confirmation of all members and authorizes the Attorney General to exercise subpoena power on behalf of the board.
In its recommendations, the 9/11 commissioners wrote:
“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, there must be adequate guidelines and oversight to properly confine its use.”
In May 2009, Udall also wrote to President Obama requesting the administration to appoint board members, saying, “I am urging you to fulfill the board’s reconstituted mission by making the nomination of the panel’s members a priority.” Just over one month ago, the U.S. Senate confirmed David Medine to serve as the first Chairman of the board, allowing it to begin hiring staff and commence oversight work.
At the Appropriations Committee, hearing, Udall noted how Richard Clarke, the former counterterrorism adviser to three U.S. presidents, raised the importance of the board. In an op-ed published in the New York Daily News this week, Clarke wrote, “the vocal advocate of civil liberties was absent because neither Bush nor Obama had appointed one, despite the recommendation of the 9/11 Commission and a law passed by Congress.”