Less than two weeks into his job as chairman of the long-dormant Privacy and Civil Liberties Oversight Board, David Medine’s top administrative priority was hiring staff, setting up office space, and getting email access and a website.
Then, Edward Snowden came along.
All of a sudden, after the former Booz Allen Hamilton contract employee’s well-publicized national security leaks, the little-known privacy board found itself cast into the middle of a heated national discussion about the balance between privacy and security.
Within days, the board, created out of a recommendation from the 9-11 Commission, gave notice that it was officially open for business. It published a notice in the Federal Register, disclosing a closed-door meeting set for June 19 to delve into the National Security Agency’s PRISM program — the program at the heart of Snowden’s leaks to the Guardian and Washington Post newspapers about NSA efforts to collect data on millions of Americans’ phone and Internet use.
The meeting of the five-member bipartisan panel was closed because it involved classified information, reflecting a unique challenge for the board as it seeks to ensure Americans’ civil liberties are upheld but also to communicate findings in a way that avoids compromising security.
“Recent events have shown the value the board can play by having a combination of being an independent set of views on particular counterterrorism practices along with access to classified information,” said Medine, a partner at the WilmerHale law firm in Washington who specialized in privacy before assuming the board chairmanship.
“So I think that puts us in an ideal position to take a look at some of the counterterrorism programs and express our views to both the president and Congress,” Medine said. “The challenge we face is that some of the information that we have access to is classified. So we have the challenge of respecting the classification rules and at the same time, communicating as much as we can publicly about what we’re doing and what we’ve found.”
For more than five years spanning both the Bush and Obama administrations, the bipartisan board sat vacant because neither administration would fill open seats. The board wasn't independent until Congress intervened in 2007.
Lanny Davis, who served as special counsel to President Clinton and served on the board during the Bush administration, quit the panel in 2007, saying the White House had edited the board’s report to Congress.
In an interview, Davis said the new board needs to go beyond getting PowerPoint presentations and briefing books from agencies and to demand answers to tough questions.
The board ought to view its role as that of “civil watchdog,” Davis said, whether to reassure the public or to raise concerns.
Medine said he couldn't disclose details about the board’s decision to meet on the NSA’s PRISM program, but said the five-member panel “wants to be as transparent as possible within the confines of protecting important secrets.”
Under the law, the board must report on its activities twice each year to Congress.
“In addition, we are also free to issue reports whenever we think it will be helpful to do so,” Medine said. “We may well, in some cases, be looking at particular programs or practices and decide they would be appropriate for a report.”
Meanwhile, Medine, who was confirmed as chairman in May, said the board is working to hire staff, set up email and move into offices later this summer.
Without a chairman, the board couldn’t conduct much business and was even forced to borrow staff from other agencies.
The fact the board is meeting to look into PRIMS is “certainly a step in the right direction,” said Mark Rumold, staff attorney for the Electronic Frontier Foundation, which was among the groups that pushed for quicker appointments to the panel.
“It’s probably as much as anything part of some damage control by NSA, which might be trying to reach out and clean up its image a little bit.”