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30–391 PDF 2006

S. HRG. 109–223

[STAR PRINT]

CONFIRMATION HEARING ON THE NOMINATIONS

OF CAROL E. DINKINS TO BE CHAIRMAN

OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD AND ALAN CHARLES RAUL

TO BE VICE CHAIRMAN OF THE PRIVACY

AND CIVIL LIBERTIES OVERSIGHT BOARD

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

NOVEMBER 8, 2005

Serial No. J–109–48

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

DAVID BROG, Staff Director 

MICHAEL O’NEILL, Chief Counsel 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

prepared statement .......................................................................................... 115

Leahy, Hon. Partrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 119

PRESENTER 

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas, presenting Carol E. Dinkins, Nominee to be Chairman of the Privacy and 

Civil Liberties Oversight Board .......................................................................... 2

STATEMENTS OF THE NOMINEES 

Dinkins, Carol E., of Texas, Nominee to be Chairman of the Privacy and 

Civil Liberties Oversight Board .......................................................................... 4

Questionnaire .................................................................................................... 5

Raul, Alan Charles, of the District of Columbia, Nominee to be Vice Chairman 

of the Privacy and Civil Liberties Oversight Board .......................................... 52

Questionnaire .................................................................................................... 54

QUESTIONS AND ANSWERS 

Responses of Carol E. Dinkins to questions submitted by Senators Durbin, 

Feingold, and Leahy ............................................................................................ 87

Responses of Alan Charles Raul to questions submitted by Senators Durbin, 

Feingold, and Leahy ............................................................................................ 101

SUBMISSIONS FOR THE RECORD 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois, Hon. 

Susan M. Collins, a U.S. Senator from the State of Maine, Hon. Joseph 

L. Lieberman, a U.S. Senator from the State of Connecticut, and Hon. 

Patrick J. Leahy, a U.S. Senator from the State of Vermont, joint letter ....... 117

Washington Post, August 8, 2005, article .............................................................. 122

(1)

NOMINATIONS OF CAROL E. DINKINS, OF 

TEXAS, TO BE CHAIRMAN OF THE PRIVACY 

AND CIVIL LIBERTIES OVERSIGHT BOARD 

AND ALAN CHARLES RAUL, OF THE DISTRICT OF COLUMBIA, TO BE VICE CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

TUESDAY, NOVEMBER 8, 2005

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 2:30 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. 

Present: Senator Cornyn.

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS

Senator CORNYN. The Committee will come to order. 

I want to thank Chairman Specter for scheduling today’s hearing. This hearing involves two very important positions recently 

created by the Congress. The Privacy & Civil Liberties Oversight 

Board was created based upon the recommendations of the 9/11 

Commission, and is designed to oversee our Government’s commitment to defend civil liberties while we do the work we need to do 

to find out who it is that is trying to hurt us. As the Chair and 

Vice Chair of this Board, both of you will fill vital positions within 

the Government. I hope we can get your nominations voted out of 

the Committee and through the Senate so you can get to work as 

soon as possible. 

As a country, we cherish our civil liberties and we are committed 

to vigorously defend them, to ensure that we maintain our way of 

life. Congress works hard to try to strike the right balance, a careful and wise balance between national security and civil liberties. 

While this is not always easy, nor can we always claim to have gotten it exactly right, I do believe that we do so with the best interests of our Nation in mind, and that we do so in a manner that 

is both honest and in good faith. 

That is why I am disappointed when we hear what turn out to 

be false reports or scare tactics about phantom civil rights violations. False reports and scare tactics serve no legitimate purpose, 

but they do a grave disservice to the American people. The war on 

terrorism must be fought aggressively, but consistent with protecVerDate 0ct 09 2002 12:23 Oct 23, 2006 Jkt 030391 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30391.TXT SJUD4 PsN: CMORC
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tion of civil rights and civil liberties. Whenever real civil liberties 

problems do arise, we must learn about them right away so that 

we can fix them swiftly. 

Every false allegation undermines true allegations, and that 

hurts us all. If anything, false claims about civil liberties violations 

actually make it harder to monitor real civil liberties issues in the 

future, for the same reason that eventually no one listened to the 

little boy who ‘‘cried wolf.’’ And that is why I encourage honest, responsible and fair discussions about the war on terrorism, civil liberties and the USA PATRIOT Act. 

The Privacy and Civil Liberties Oversight Board will play an important role in this debate. Both of you will be expected to give 

honest, responsible and fair review of the development and implementation of laws, regulations and executive branch policies related to efforts to protect the Nation against terrorism, and you 

will also be expected to ensure that concerns with respect to privacy and civil liberties are appropriately considered. And I stand 

ready to work with both of you, and I know the Committee as a 

whole does as well. 

[The prepared statement of Senator Cornyn appears as a submission for the record.] 

Well, I see we have the senior Senator from Texas here. I know 

she is eager to make an introduction, so let us turn to Senator 

Hutchison.

PRESENTATION OF CAROL E. DINKINS, NOMINEE TO BE 

CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD, BY HON. KAY BAILEY HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS

Senator HUTCHISON. Thank you, Mr. Chairman. I thank you for 

holding this hearing. 

I am very pleased to be here with my friend, Carol Dinkins. 

Carol has been nominated to chair this Board, the Privacy and 

Civil Liberties Oversight Board, and I really cannot think of a better person for this job. 

I have known Carol for a long time. She is a leader, as you know, 

Mr. Chairman, in the legal field in Texas. She has worked with the 

law firm of Vinson Elkins through most of her career, and during 

her tenure there has become a leading expert in the United States 

in environmental law. She has represented clients across various 

industries, and has handled all aspects of client counseling from 

litigation to mediation and standard business transactions. She 

served on the firm’s Management Committee and currently chairs 

the firm’s administrative and environmental law practice. 

In 1981, Carol left Vinson Elkins to serve as the Assistant Attorney General in Charge of the Environmental and Natural Resources Division in the Department of Justice. In this position she 

supervised the Government’s litigation in Federal environmental, 

natural resources, Indian and public lands cases. In 1984, she became the Deputy Attorney General of the United States, the second 

ranking official in the Department of Justice. Her responsibilities 

included day-to-day management of the Department’s 60,000 employees, as well as working with members of Congress, the White 

House, the Cabinet, and sub-Cabinet officers. 

3

Carol Dinkins is a member of the State Bar of Texas, the Federal 

Bar Association and the American Bar Association. She has also 

served as Chair of the ABA Standing Committee on the Federal Judiciary. Her active participation in the legal community has earned 

her many awards and recognitions, including being cited as one of 

the best lawyers in America. 

I am proud that she hails from my alma mater, the University 

of Texas at Austin, where she earned her bachelor’s degree, and 

later attended the University of Houston for her JD. 

I know that her experience in both the public and private sectors 

have prepared her to serve as the first Chair of the Privacy and 

Civil Liberties Oversight Board, and I am very pleased that she 

has been willing to accept this nomination. 

And, Mr. Chairman, I know that your holding this hearing 

means that you also have an interest in expediting these confirmations so that we can get the Board set up and ready to go. 

Thank you. 

Senator CORNYN. Thank you very much, Senator Hutchison. I 

know you have other commitments, and I have already told our two 

nominees that we have stacked votes here in just a few minutes, 

we will soldier on the best we can. But thank you for being here 

and introducing Ms. Dinkins. 

Since I have had the honor of also knowing Carol Dinkins for a 

number of years too, I will not repeat all the nice things that Senator Hutchison said, but just put me down as ditto for all those 

compliments, and I agree the President has chosen wisely as the 

Chair of this Board. 

Our other nominee is Alan Raul, who is the President’s nominee 

to serve as Vice Chair of the Privacy and Civil Liberties Oversight 

Board. He is a partner in the prestigious Washington, D.C. law 

firm of Sidley, Austin, Brown and Wood, and he too brings significant public sector and private sector experience to this job. 

Mr. Raul’s previously served at the White House as Associate 

Counsel to President Reagan. He has also served as General Counsel of the Office of Management and Budget, and as General Counsel to the U.S. Department of Agriculture. Mr. Raul, I am confident 

your past Government service will serve you well in this new position as well. 

I welcome both of you here. 

As I told Ms. Dinkins yesterday when she was in my office, just 

catching up after not seeing each other for a while, we had a 

chance for some informal conversation. I will tell you, Mr. Raul, 

what I told her yesterday. I said the fact that we do not have a 

packed audience here or packed members of the Senate Judiciary 

Committee here does not mean that they are not listening and not 

interested, because certainly they are and certainly their staff is 

here. But these days, given the contentious nature of some of our 

fights here on the Judiciary Committee in particular, the fact that 

this is not a packed dais up here is not a bad thing. It is probably 

a good thing. 

I am hopeful that we will be able to, as Senator Hutchison and 

I have already said, move promptly on these nominations. 

4

At this time I would like to turn now to Ms. Dinkins, and any 

opening remarks you would care to make, we would be glad to 

hear.

STATEMENT OF CAROL E. DINKINS, NOMINEE TO BE CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT 

BOARD

Ms. DINKINS. Thank you, Mr. Chairman. I appreciate your kind 

words and those of Senator Hutchison as well. It is a great pleasure to be here today, and a privilege to be nominated by the President to Chair the Privacy and Civil Liberties Oversight Board, and 

if confirmed, I will be privileged to serve with Alan Raul, and Ted 

Olsen, Lanny Davis and Frank Taylor, all of whom are men of 

great distinction and of very considerable achievement and experience. 

Having served as Assistant Attorney General for the Office of 

Legal Counsel, and more recently as Solicitor General of the United 

States, Mr. Olsen is well known to this Committee. I was fortunate 

to serve as an Assistant Attorney General when he was the head 

of the Office of Legal Counsel at the Department of Justice, and I 

sought his advice and counsel on a number of difficult matters. 

From that experience, I know that he is careful, measured and 

thoughtful, and he is thorough in his legal analysis. He is an independent thinker, and he is squarely grounded in the law. 

Mr. Chairman, I would like to present Lanny Davis, who is behind me. 

[Mr. Davis stood.] 

Ms. DINKINS. Thank you, Lanny. 

Lanny has a great depth of experience as Special Counsel to 

President Clinton, and that will be invaluable to the Board, which 

is housed within the Executive Office of the President. 

The other member, Frank Taylor, who is here also, was a longtime career Air Force officer in the area of security, before he was 

Secretary of State, as Counterterrorism Coordinator, and he is now 

head of security at General Electric. 

The breadth of this collective experience will assure that this 

Board is well suited to carry out the functions and the great responsibility that has been assigned it. We see that it will be a particular challenge to have the opportunity to be the first members 

of this Board, and if Alan and I area confirmed, to be the first 

Chair and Vice Chair. We will be shaping the organization of the 

Board and working with its members to develop and carry out the 

initial agenda. 

If confirmed, my first priority as Chair, with Mr. Raul’s very able 

assistance, will be to engage an Executive Director and to do what 

is necessary to get the Board up and running. We will convene as 

soon as possible to develop our agenda and set priorities, and an 

integral part of that agenda will be to reach out to those who are 

interested in this Board and its activities. 

We would welcome the opportunity, if confirmed, to meet with 

members of Congress who may wish to share their views on the 

role and activities of the Board, and we look forward to reporting 

at least annually to the Congress on our major activities. 

Thank you. 

[The biographical information of Ms. Dinkins follows.]

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Senator CORNYN. Thank you, Ms. Dinkins, and thank you for introducing the other members of the Board who are here with us, 

and welcome. 

Mr. Raul, we will now turn to you for any opening comments you 

would like to make. 

STATEMENT OF ALAN CHARLES RAUL, NOMINEE TO BE VICE 

CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

Mr. RAUL. Mr. Chairman, thank you for your kind introduction 

earlier. 

It is a great honor and responsibility to appear before this Committee as President George W. Bush’s nominee to serve as Vice 

Chairman of the Privacy and Civil Liberties Oversight Board. I am 

humbled and inspired that the President has asked me to help our 

Nation maintain its constitutional soul in the process of defending 

itself and ultimately vanquishing enemies who have sworn to do us 

brutal harm. This mission is surely one of the most important and 

challenging roles a lawyer in our country could be asked to undertake. 

If I am confirmed it will be a special privilege to embark upon 

this initiative with such distinguished, experienced and independent-minded colleagues as Carol Dinkins, Ted Olsen, Lanny 

Davis and Frank Taylor. My prospective fellow Board members are 

as talented and patriotic as any group with whom one could hope 

to work. I look forward to sharing responsibilities, efforts and objectives with them. 

I am under no illusion that we can or should please everyone 

with the work of the Board. As embodied in the statute establishing the Privacy and Civil Liberties Oversight Board, our advisory and oversight obligations reflect a certain tension between 

protecting the precious liberties that are vital to our way of life, 

and acknowledging the additional powers the Federal Government 

may need to conduct the war on terrorism. 

While I recognize that we may not please all sides all the time, 

I am certain that I and the other members of the Board will discharge our specified legal duties honestly and conscientiously. Specifically, we will be dedicated to ensuring that privacy and civil liberties implications and concerns are identified, understood, communicated, and appropriately considered as the executive branch develops and implements policies and practices to fight the war 

against terrorism. 

To that end, if confirmed, I will make the personal commitment 

to assure that the views of the Privacy and Civil Liberties Oversight Board are informed and credited within the executive branch, 

and useful to the President and the relevant department and agency heads. We will also report candidly to Congress, as required by 

law, and consult meaningfully with civil libertarians and other patriots inside and outside of Government, who are interested in 

sharing their views, suggestions and concerns with us. 

In the first and final analysis, if confirmed, I, and the other 

members of the Board I am sure, will be governed by the opening 

text in our great Constitution, where the people established our 

noble system of Government to, quote, ‘‘ensure domestic tranVerDate 0ct 09 2002 12:23 Oct 23, 2006 Jkt 030391 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30391.TXT SJUD4 PsN: CMORC
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quility, provide for the common defense,’’ and most germane for our 

Board, ‘‘secure the blessings of liberty to ourselves and our posterity.’’ 

Thank you for honoring me with your consideration of my nomination. 

[The biographical information of Mr. Raul follows.]

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Senator CORNYN. Thank you, Mr. Raul, and thanks to you, Ms. 

Dinkins, for both bringing members of your family here with you. 

This is, I know, a proud moment for them as well. 

Let me ask you, please, to stand so I can administer the oath to 

both of you. 

Do you swear that in your testimony before the Committee, you 

will tell the truth, the whole truth and nothing but the truth, so 

help you God? 

Mr. RAUL. I do. 

Ms. DINKINS. I do. 

Senator CORNYN. Thank you. Please have a seat. 

I guess one of the big challenges that this Board has is being a 

new board and being really not a lot of guidance, I guess, for exactly how you are supposed to carry out your functions. I would be 

interested in hearing from each of you how you intend to proceed, 

if only maybe in general terms right now, if you are confirmed to 

this position. How do you see getting started, Ms. Dinkins? 

Ms. DINKINS. Thank you, Mr. Chairman. It will be quite a challenge given that the Board does not currently exist and it is brand 

new. As I said earlier, our first order of business will be to engage 

an Executive Director. We will then evaluate what other types of 

people we might need to staff the functioning of the Board, and 

seek additional resources from the various departments through 

detailees, for example. 

Once we have an Executive Director and office space, to speak 

very practically, then the Board will begin to identify who we 

would want to reach out to and speak with about what their views 

are regarding the things that the Board should be looking at and 

delving into. And we will use that to guide us in setting our agenda, and more importantly, within the agenda, to set priorities. 

That’s very general, but other than that, we’ll be guided by what 

is in our statutory mandate. 

Senator CORNYN. Mr. Raul, do you have any other thoughts? 

Mr. RAUL. Well, I agree with Ms. Dinkins that we will seek to 

reach out and be educated by the views of the people, both inside 

and outside the Government, the Executive Branch and in the Congress, to learn from people who have been following this issue and 

very concerned about it for a long time. So we’d like to hear from 

people who are interested in sharing their thoughts with us. Obviously, we’ll convene as a Board, the five of us, to determine initial 

priorities and so on, but as Ms. Dinkins indicated, finding an Executive Director, getting the logistics of getting an organization in 

place will be, will have to be a top priority. 

Senator CORNYN. As I said, the statute is not really expansive 

about exactly how you are supposed to function, but it does say 

that the role of the Board is to advise counsel and oversee the Executive Department’s development and implementation of policy, 

including reviewing proposed regulations and executive branch 

policies in the area of terrorism prevention and so forth, reviewing 

the implementation of laws, regulations and executive branch policies related to terrorism prevention, including the implementation 

of information-sharing guidelines under Sections (d) and (f) of Section 1016 of the National Intelligence Reform Act, and then to advise the President and department and agency heads, to ensure 

84

that privacy and civil liberties are appropriately considered in the 

development and implementation of such regulations and Executive 

Branch policies. 

It is my impression that some people feel that this is a zero-sum 

game, Ms. Dinkins, between national security and terrorism prevention on one hand, and civil liberties and privacy rights on another. How do you see it? 

Ms. DINKINS. Both of those are of fundamental importance to our 

way of life and to our future. We must protect the country from 

those who would destroy us and destroy our people and our culture, 

but on the other hand, we can’t give up or give short shrift to what 

makes this such a special Nation, and we must protect our privacy 

and our civil liberties. 

And these are things that require careful balancing, things that 

require a great deal of back and forth to make sure that the tension is properly resolved so that we do not sacrifice our civil liberties while we are fighting those who wish to destroy us. I don’t 

think that it’s an easy tension, but it’s one that we must grapple 

with and we must come out on the right side of it. 

Senator CORNYN. I know as we have debated the PATRIOT Act—

I was not here when that was passed and signed by the President, 

but I have been here during the debate since that time, and aware 

of the fact that the PATRIOT Act has been condemned, I guess, by 

the resolution of, I think, over 300 different municipal governments. Now, it is a matter of curiosity to me why city councils and 

mayors would be passing resolutions condemning the PATRIOT 

Act, particularly in light of the fact that it has been so important, 

particularly in terms of information sharing, in terms of making 

sure that our intelligence and law enforcement authorities have the 

tools they need in order to root out terrorist activity, and to keep 

us safe. 

I say that just because it has always struck me that this is an 

area where there is a lot of misinformation, you might even say 

disinformation, and perhaps the best thing you could say is it is an 

area where people just do not know s much as they probably would 

need to know in order to make good decisions about this balance. 

I am curious, Mr. Raul, do you happen to know, will the Board 

be privy to classified information and be given an opportunity, in 

evaluating privacy and civil liberty concerns, to be able to weight 

that in the balance with concerns about threats? 

Mr. RAUL. Yes, Mr. Chairman. The statute establishing the 

Board is very clear that the members of the Board are to be provided with security clearances, specifically for the purpose of allowing us, if confirmed, to have information that will let us balance 

these issues in an informed way. We need to have, and I believe 

the statute contemplates that we will have, access to information 

so that we can advise the President, department heads and agency 

heads, and make our report to Congress. And the statute says ‘‘in 

an unclassified fashion to the greatest extent possible,’’ thereby 

contemplating that portions of it might remain classified. 

But I believe that it was the intention in establishing the Board 

that we would have the clearances that are necessary and commensurate with the type of information that we will need to balance 

85

the issues between fighting the war on terrorism while ensuring 

that civil liberties concerns are considered as we do that. 

Senator CORNYN. I think that is very important, because as our 

own history shows us, the more people feel threatened by whether 

it is terrorism or by enemies of this country, the more perhaps we 

are willing to accept in terms of loss of privacy rights. I think people do have to strike a balance, and that will be important information for you to have, I think, as you go through this job, and as you 

review these rules and regulations, and as you advise the President 

and other agencies. 

I also think you could perform an important role for the President by, as you said, by reaching out to various organizations that 

do have concerns in these areas, and I think part of that is going 

to be not only listening to their concerns, but perhaps helping them 

to understand what the facts are because this is an area that can 

be very emotional, and sometimes disputes can be resolved by 

pointing out the facts or correcting misimpressions or misapprehensions about exactly what Congress and the Federal Government is 

about. 

I know you will not be too surprised that I do not have a lot more 

for you, and actually it may turn out to be fortuitous that we do 

have votes now, but I think at this point what I will do is we are 

going to leave the record open so that any member of the Committee can ask any additional questions they may have of you in 

writing, and we will leave that record open until 5 p.m. on Tuesday, November the 15th, for that purpose. 

What we are going to do, after a little consultation with staff 

here, we are going to recess the hearing, and we have two votes 

so it may be a few minutes, maybe 30 minutes or so, and then we 

will come back. 

I am actually through with the questions I had of you, but Senator Feingold, I understand, will be coming, and either he will reconvene the hearing and ask those questions, or I will be back for 

that purpose. 

But thank you for being understanding about our crazy schedule 

around here. Thank you for your willingness to serve. 

We will recess the hearing at this time. 

[Recess from 2:56 p.m. until 3:32 p.m.] 

Senator CORNYN. One thing I neglected to do is to give you each 

a chance to introduce your family members that are here with you. 

I had a chance to meet them informally, but, Ms. Dinkins, would 

you care to introduce your family for the record? 

Ms. DINKINS. Yes, thank you so much. Mr. Chairman, may I 

please present my husband, Bob Brown. 

Senator CORNYN. Congratulations, nice to see you. 

Mr. Raul, I know you have several members of your family here 

with you. 

Mr. RAUL. Yes, I have a nice cohort here. Thank you, Mr. Chairman. 

I have my wife, Mary Tinsley Raul, and my daughter Caroline, 

my son, William, and my son, Alexander, and I also have my sisterin-law, Sarah Tinsley Demarest. 

86

Senator CORNYN. That is great. Well, welcome to all of you, and 

thank you for being here and being so supportive of your spouse, 

and father and brother, excuse me. 

Senator Feingold had said he wanted to come over and ask a few 

questions, but unfortunately, he is otherwise committed, so he is 

going to submit those questions in writing, like other members of 

the Committee. There may be additional questions that you will be 

asked to answer. Those will be submitted no later than 5 o’clock, 

next Tuesday. 

With that, the hearing is adjourned. 

[Whereupon, at 3:33 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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