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PRIVACY IN THE HANDS OF GOVERNMENT: THE 

PRIVACY AND CIVIL LIBERTIES OVERSIGHT 

BOARD AND THE PRIVACY OFFICER FOR THE 

U.S. DEPARTMENT OF HOMELAND SECURITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JULY 24, 2007 

Serial No. 110–142 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

JULY 24, 2007 

OPENING STATEMENT 

Page 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 1 

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 2 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Member, Subcommittee on Commercial and Administrative Law, and Chairman, Committee on the Judiciary ..................................... 4 

WITNESSES 

The Honorable Alan Charles Raul, Esq., Privacy and Civil Liberties Oversight 

Board, The White House, Washington, DC 

Oral Testimony ..................................................................................................... 16 

Prepared Statement ............................................................................................. 18 

Lanny J. Davis, Esq., Orrick, Herrington & Sutcliffe, LLP, Washington, DC 

Oral Testimony ..................................................................................................... 33 

Hugo Teufel III, Esq., U.S. Department of Homeland Security, Washington, 

DC 

Oral Testimony ..................................................................................................... 34 

Prepared Statement ............................................................................................. 36 

Ms. Linda Koontz, U.S. Government Accountability Office, Washington, DC 

Oral Testimony ..................................................................................................... 54 

Prepared Statement ............................................................................................. 56 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Chairman, Committee on the 

Judiciary, and Member, Subcommittee on Commercial and Administrative 

Law ........................................................................................................................ 6 

Article from The Washington Post, dated November 28, 2006, ‘‘Justice Dept. 

to Examine Its Use of NSA Wiretaps; Review Won’t Address Program’s 

Legality,’’ submitted by the Honorable Christopher B. Cannon, a Representative in Congress from the State of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ......................................... 13 

Article from Salon.com, dated July 23, 2007, ‘‘Bush’s torture ban is full 

of loopholes,’’ submitted by the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, Chairman, Committee on 

the Judiciary, and Member, Subcommittee on Commercial and Administrative Law ................................................................................................................ 94 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Redline version of the Privacy and Civil Liberties Oversight Board, 2007 

Report to Congress with edits by The White House, submitted by the 

Honorable Linda T. Sa ́nchez, a Representative in Congress from the State 

of California, and Chairwoman, Subcommittee on Commercial and Administrative Law ........................................................................................................... 101 

Answers to Post-Hearing Questions posed by the Honorable Linda T. Sa ́nchez, 

a Representative in Congress from the State of California, and Chairwoman, Subcommittee on Commercial and Administrative Law to the Honorable Alan Charles Raul, Esq., Privacy and Civil Liberties Oversight 

Board, The White House, Washington, DC ........................................................ 145 

Answers to Post-Hearing Questions posed by the Honorable Linda T. Sa ́nchez, 

a Representative in Congress from the State of California, and Chairwoman, Subcommittee on Commercial and Administrative Law to the Honorable Hugo Teufel III, Esq., U.S. Department of Homeland Security ........... 153 

Answers to Post-Hearing Questions posed by the Honorable Linda T. Sa ́nchez, 

a Representative in Congress from the State of California, and Chairwoman, Subcommittee on Commercial and Administrative Law to Ms. 

Linda Koontz, U.S. Government Accountability Office ..................................... 184 

Privacy and Civil Liberties Oversight Board, 2007 Report to Congress, submitted by the Honorable Linda T. Sa ́nchez, a Representative in Congress 

from the State of California, and Chairwoman, Subcommittee on Commercial and Administrative Law ............................................................................... 190 

(1) 

PRIVACY IN THE HANDS OF GOVERNMENT: 

THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD AND THE PRIVACY OFFICER 

FOR THE U.S. DEPARTMENT OF HOMELAND 

SECURITY 

TUESDAY, JULY 24, 2007 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:50 p.m., in Room 

2237, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Sa ́nchez, Conyers, Watt, Cannon, 

Feeney, and Franks. 

Staff present: Susan Jensen-Lachmann, Majority Counsel; Stewart Jeffries, Minority Counsel; and Adam Russell, Majority Professional Staff Member. 

Ms. SA ́ NCHEZ. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law will now 

come to order. 

And I will now recognize myself for a short opening statement. 

Since the September 11 terrorist attacks, Congress has been 

challenged with protecting individual liberties while working to 

keep our Nation secure. Unfortunately, and all too often, security 

and liberty have been seen as competing interests, and in this competition, the right to privacy has tended to be the first victim. 

I do not believe that the two are necessarily in conflict. With 

hard work, we can achieve both goals. In fact, it is imperative to 

our way of life that we do so. 

The Subcommittee on Commercial and Administrative Law has 

played a major role with respect to protecting personal privacy and 

civil liberties in this era of heightened government authority over 

the years. It is with that in mind that the Subcommittee is holding 

a hearing to review the work and performance of the Privacy and 

Civil Liberties Oversight Board and the Department of Homeland 

Security’s privacy officer. 

As part of our ongoing interest in privacy issues, the Subcommittee has participated in the effort to create the Privacy and 

Civil Liberties Oversight Board. As we all know, the board was established in 2004 in direct response to the 9/11 Commission’s recVerDate Aug 31 2005 14:01 Dec 17, 2008 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\COMM\072407\37007.000 HJUD1 PsN: 37007
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ommendation that there be an entity within the executive branch 

to oversee the government’s commitment to protecting our privacy 

and defending our civil liberties. 

Recently, there has been increased criticism that the final formulation of the board fell far short of expectations. We hope those 

issues will be addressed during today’s hearing. 

The Subcommittee was also instrumental in establishing the first 

statutorily created privacy office in a Federal agency, namely the 

Department of Homeland Security, and spearheaded the creation of 

a privacy office in the Justice Department with similar responsibility. 

At this very moment, a Conference Committee tapped with resolving the differences between House and Senate legislation that 

would substantially increase the powers and responsibilities of both 

the DHS privacy office and the board has nearly completed its 

work. 

Further, in keeping with our oversight duties, we have conducted 

several hearings in the past two Congresses as well as requested 

a GAO study of the DHS privacy office which will be the subject 

of at least part of today’s hearing. Accordingly, the testimony of all 

of our witnesses is particularly timely. 

We are very pleased to have Hugo Teufel, the Department of 

Homeland Security’s current chief privacy officer, with us today, as 

well as Linda Koontz, director of information management issues 

on behalf of the GAO, which has recently issued a report on Mr. 

Teufel’s office. 

We expect our witnesses, Lanny Davis, a former member of the 

Privacy and Civil Liberties Oversight Board, and Alan Charles 

Raul, vice chair of the board, to help enlighten us about the board 

and how we can improve it. 

I want to thank all of the witnesses for coming today and for 

your patience in terms of the votes that we just had to complete, 

and I look forward to hearing your testimony. 

At this time, I would like to recognize my colleague, Mr. Cannon, 

the distinguished Ranking Member of the Subcommittee, for his 

opening remarks. 

Mr. CANNON. Thank you, Madam Chair. 

Let me begin this hearing, as I have in the past, with an observation written 220 years ago by Alexander Hamilton, one of our 

founding fathers. In ‘‘Federalist No. 8,’’ he wrote, ‘‘Safety from external danger is the most powerful director of national conduct. 

Even the ardent love of liberty will, after a time, give way to its 

dictates. 

‘‘The violent destruction of life and property incident to war, the 

continual effort and alarm attendant on a state of continual danger 

will compel nations most attached to liberty to resort for repose 

and security to institutions which have a tendency to destroy the 

civil and political rights. To be more safe, they at length become 

willing to run the risk of being less free.’’ 

Mr. Davis and I were just talking in advance of this hearing 

about the fact that this is one of those areas where the left and 

right sort of meet, and we do so because of that principle enunciated by Mr. Hamilton. In this post-9/11 world, it is not an easy 

task to balance the competing goals of keeping our Nation secure 

3 

while at the same time protecting the privacy rights of our Nation’s 

citizens. 

When I was Chair of the Subcommittee, the protection of personal information in the hands of the Federal Government was a 

top priority, and I am proud of our role in protecting personal privacy and civil liberties. 

These accomplishments included the establishment of the first 

statutorily created privacy office in a Federal agency at the Department of Homeland Security and the mandate that the Department 

of Justice designate a senior official with primary responsibility for 

privacy policy included in the Department of Justice Reauthorization Act of 2005. 

We also held a hearing on the 9/11 Commission’s privacy-related 

recommendations and a hearing on the respective roles that the 

Federal Government and information resellers have with respect to 

personal information collected in commercial databases. In the 

past, the GAO has found that the Federal agencies’ compliance 

with the Privacy Act and other requirements is ‘‘uneven.’’ 

Today’s hearing provides us an opportunity to revisit some of 

these issues. We will hear from the GAO which has completed a 

study of the DHS privacy office at my request along with that of 

former Ranking Member Watt, current Subcommittee Chairman 

Nadler, and former Constitution Subcommittee Chairman Chabot. 

I am pleased that the GAO found that the privacy office has 

made significant progress in carrying out its statutory responsibilities. Of course, as with any agency, there is always room for improvement. In this case, GAO found that the privacy office could 

provide its reports in a more timely manner. 

I am pleased, however, to see the privacy office has accepted a 

number of GAO’s recommendations, and I look forward to hearing 

about how they can continue to improve their performance. 

Secondly, we will hear from our current and former members of 

the Privacy and Civil Liberties Board, which was created in response to the 9/11 Commission’s report. Recently, the board came 

out with its first annual report detailing its governmentwide efforts 

to advise and provide oversight with respect to privacy issues. Unfortunately, this is likely to be the last of such reports. 

Currently, the House and Senate are in conference negotiations 

over a bill that would take the Privacy and Civil Liberties Board 

out of its current home in the White House and set it up as an 

independent body in the executive branch with subpoena power. 

While an independent board might have its merits, so too does 

a board that is located in the White House. As it is currently constructed, the board has direct access to high-ranking White House 

officials as well as the attorney general, the secretary of homeland 

security and the director of national intelligence. Whether they will 

continue to have access if they are moved out of the White House 

is another matter. 

Had the majority waited to conduct oversight before legislating 

this area, the results of that legislation might have been different. 

As it stands, we are having our first oversight on the board 6 

months after the House voted to dismantle it. That strikes me as 

odd. 

4 

I am also pleased that we have a former board member here, Mr. 

Lanny Davis. As I understand it, Mr. Davis resigned from the 

board because of what he viewed as an overintrusive White House 

review process of the board’s report. However, I have a copy of the 

redlined report from The Washington Post, and the vast majority 

of the changes are typographical or stylistic in nature. 

In addition, I would note that Mr. Davis signed on the final 

version of the report, so I look forward to finding out what he 

thought was so objectionable about it. And knowing Mr. Davis, I 

am sure it will come to us in the most articulate manner possible. 

With that said, I appreciate the Chair’s interest in this matter, 

and I am glad that we will continue to conduct vigorous oversight 

of privacy in the hands of government. 

I thank you, Madam Chair. I yield back. 

Ms. SA ́ NCHEZ. I thank the gentleman. 

And I would like to at this time recognize Mr. Conyers, a distinguished Member of the Subcommittee and the Chairman of the 

Committee on the Judiciary. 

Mr. Conyers? 

Mr. CONYERS. Thank you, Chairwoman Sa ́nchez. 

I am happy to be with you again today, because this Committee, 

which was Subcommittee number five, turns out to be the most active in the 110th Congress. 

I am also glad that Chris Cannon is still on the Committee and 

is following these issues as carefully as he always has, and, of 

course, Tom Feeney has become a very active Member of the Committee. 

Actually, I had a quotation that started off: More than 200 years 

ago, Alexander Hamilton warned—— 

Mr. CANNON. If the gentleman would yield, great minds are on 

the same track. I hope that ours are on the track that Alexander 

Hamilton’s was on. That would be good. 

Mr. CONYERS. Yes. Well, if you include all three great minds, this 

is a wonderful way to start our hearing. 

But it grabbed me the same way you felt compelled to recite it 

here, Chris Cannon, because this could have been written in the 

21st century without changing anything. ‘‘To be more safe, they at 

length become willing to run the risk of being less free.’’ 

And that is the balance we find ourselves caught in in this post9/11 circumstance. But in this environment, I am worried that our 

liberties have come under attack by our own government, much 

like Alexander Hamilton feared. 

It seems as if each day we learn of a new law enforcement initiative or antiterrorism program challenging our private rights and 

civil liberties, and it gives this Subcommittee an awesome responsibility in terms of what our jurisdiction is, and I am so pleased that 

the Chairperson thought that we should do oversight at this point 

in time. 

Much of our victory against those who oppose us will come when 

we advance the American values on which our Nation was founded. 

We must serve as a leader in promoting freedom, liberty and democracy. In the eyes of many in the world, this is no longer the 

case, and so I come here with a concern about warrantless wiretaps 

and illegal surveillance, and we haven’t been able even to find out 

5 

the legal rationale, much less brief the Members of this Subcommittee on what we were doing. 

The denial of habeus corpus rights to individuals deemed to be 

enemy combatants: This Subcommittee recently held hearings—no, 

it was the Constitution Subcommittee—to examine the detention 

policy of our government, and the findings were troubling. 

It is clear that many of the people whom we were told were the 

worst of the worst have never been evaluated or charged. Individuals who our own government acknowledges are not ‘‘terrorists’’ 

and are not a threat are nonetheless still held in custody. 

The rampant use of profiling, be it ethnic or racial or religious: 

Passengers have been denied the right to fly on aircraft. Religious 

institutions have been subjected to FBI surveillance. Justice Department statistics show that routine automobile traffic stops and 

their outcomes are frequently connected to the race of the driver. 

The Guantanamo tragedy: These include the use of what has 

been euphemistically referred to as harsh interrogation techniques 

against prisoners detained by the Defense Department, the imprisonment of hundreds of individuals for years at Guantanamo without meaningful due process as to the reasons or the basis for their 

captivity, restricting these detainees from having meaningful access to counsel. 

And these abuses have been mitigated, except that Friday the 

President of the United States issued an executive order qualifying 

what our agreement in terms of lightening up on some of these 

very obvious techniques that violate our treaty obligations and our 

sense of decency. 

We have other issues that we need to talk about. I will leave 

them to be included in my statement in the record, and I notice the 

presence of Mr. Lanny Davis, and I think it is very important that 

he be here for this hearing, and I welcome the other witnesses as 

well. 

And I thank the gentlelady for her indulgence. 

[The prepared statement of Mr. Conyers follows:] 

6 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, CHAIRMAN, COMMITTEE ON THE JUDICIARY, AND MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW


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Ms. SA ́ NCHEZ. I thank the gentleman for his statement. 

Mr. CANNON. Madam Chair, may I ask unanimous consent to include in the record at this point a story from The Washington Post 

dated November 28, 2006, regarding the Department of Justice inspector general announcing an examination of NSA wiretaps? It is 

an interesting article because it quotes Mr. Davis extensively, and 

I will leave it for the record, except to say that he was pleasantly 

surprised. 

Just one quote: ‘‘I am astonished at the extent to which they are 

all concerned about the legal and civil liberties and privacy implications of what they are doing,’’ Davis said. And he ties that back to 

the prior Administration. So this really is an area that does transcend partisan politics. 

And so, I would ask unanimous consent that that be included in 

the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The article follows:] 

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Ms. SA ́ NCHEZ. And without objection, other Members’ opening 

statements will be included in the record. 

Without objection, the Chair will be authorized to declare a recess of the hearing at any point. 

I am now pleased to introduce the witnesses for today’s hearing. 

Our first witness is Hugo Teufel, chief privacy officer of the U.S. 

Department of Homeland Security. Mr. Teufel was appointed chief 

privacy officer by Secretary Chertoff on July 23, 2006, and has primary responsibility for privacy policy at the Department of Homeland Security. He also serves as the department’s chief Freedom of 

Information Act officer. 

Our second witness is Linda Koontz, who is the director of GAO’s 

information and management issues division. In that capacity, she 

is responsible for issues regarding the collection, use and dissemination of government information. Ms. Koontz has led GAO’s investigations into the government’s data-mining activities as well as EGovernment Initiatives. She is also board member of the Association for Information and Image Management Standards. 

Our third witness is Lanny Davis. Mr. Davis is a partner at the 

firm of Orrick, Harrington & Sutcliffe, LLP, and advises clients on 

a wide range of legal and governmental issues. In June 2005, President Bush appointed Mr. Davis to serve on the Privacy and Civil 

Liberties Oversight Board, and on May 14, 2007, he resigned from 

the board. Mr. Davis served as special counsel to the President 

during the Clinton administration. 

And our final witness is Alan Charles Raul, vice chairman of the 

Privacy and Civil Liberties Oversight Board. Appointed by President Bush to the board, Mr. Raul was confirmed by the Senate on 

February 17 of 2006 and also served in the White House as associate counsel to the President and general counsel to the Office of 

Management and Budget under President Reagan and as general 

counsel of the U.S. Department of Agriculture under President 

George H.W. Bush. 

I want to thank you all for your willingness to participate in today’s hearing. 

Without objection, your written statements will be placed in their 

entirety into the record, and we would ask that you please limit 

your oral remarks to 5 minutes. 

You will note that we have a lighting system that starts at the 

beginning of your time with a green light. After 4 minutes, it will 

turn orange, which is a warning to you that you have 1 minute to 

wrap up your oral testimony. When the light turns red, that is an 

indication that your time has expired. If you are mid-sentence, we 

would ask that you just finish your thought and wrap up your testimony in that way so that each witness will have an opportunity 

to give their testimony. 

After each witness has presented his or her testimony, Subcommittee Members will be permitted to ask questions subject to 

a 5-minute limit. 

Okay. We are going to switch the order of the witnesses, as I am 

noticing the seating order. So we are actually going to begin with 

Mr. Raul. 

Mr. Raul, will you please begin your testimony? 

16 

TESTIMONY OF ALAN CHARLES RAUL, ESQ., PRIVACY AND 

CIVIL LIBERTIES OVERSIGHT BOARD, THE WHITE HOUSE, 

WASHINGTON, DC 

Mr. RAUL. Okay. Thank you, Chairman Sa ́nchez, Ranking Member Cannon, Chairman Conyers, Mr. Feeney, and other Members 

of the Subcommittee. 

On behalf of Chairman Carol Dinkins and members Ted Olson 

and Frank Taylor, I want to thank you for the opportunity to testify this afternoon regarding the Privacy and Civil Liberties Oversight Board. 

The board recently discussed its mission, activities, and accomplishments in its first annual report to Congress issued in April, 

and it is available on the board’s Web site at 

www.privacyboard.gov. 

I appreciate the Subcommittee’s interest in the board and its 

mission. 

Before discussing some of the board’s activities, accomplishments 

and plans for the year ahead, I believe it is important to address 

the legislation currently pending in both Houses of Congress that 

would dramatically affect the board’s future, as Mr. Cannon indicated. It is significant that the pending legislation was passed by 

both Houses without any hearing or testimony on the subject of the 

board’s operations. 

I should note, however, that I would like to correct a statement 

in my written testimony that no relevant information was requested of the board. There have, in fact, been a number of informal meetings with Members and staff regarding the board’s operations during its existence. 

In any event, I respectfully submit that Congress would have 

been well-served to hold formal hearings before adopting significant 

legislative changes, such as the ones currently proposed and in the 

conference committee. 

While the request for today’s testimony did not mention or arise 

in the context of the pending legislation, I will seek to provide some 

perspective on this subject. I will also discuss a number of the 

board’s principal activities in the past 16 months, specifically our 

review of the terrorist surveillance program conducted by the NSA, 

both before and after the FISA court orders authorizing the program, and the FBI’s serious mishandling of that agency’s authority 

to issue national security letters, or NSLs. 

While we found the NSA compliance procedures to be highly regimented and well-controlled, we were dismayed at the FBI’s lack of 

adequate compliance procedures to assure that NSLs were issued 

and used in accordance with legal requirements. 

As you know, Congress created the board as part of the Intelligence Reform and Terrorism Prevention Act of 2004, which placed 

it in the Executive Office of the President. The board’s mandate is 

to provide advice and oversight to help ensure that privacy and 

civil liberties are appropriately considered in the development and 

implementation of laws, regulations and policies related to the executive branch’s efforts to protect the Nation against terrorists. 

The board is, of course, fully aware that both the House of Representatives and the Senate have passed separate legislation that, 

if enacted in substantially the form of the House bill, would drasVerDate Aug 31 2005 14:01 Dec 17, 2008 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 H:\WORK\COMM\072407\37007.000 HJUD1 PsN: 37007
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tically alter the present construct of the board. In fact, whether intended or not, if so enacted, the changes would result in the termination of the present board, elimination of the current staff and 

closure of the existing office. 

The House bill H.R. 1 would establish the board as a new independent entity with subpoena authority. In effect, the House bill 

would create an institution potentially resembling certain data protection authorities found within the European Union member countries; namely, independent privacy czars that are effectively disconnected from the policymaking and implementing processes in the 

executive branch and are thus able to second-guess policy without 

necessarily understanding the consequences or alternatives. 

This is potentially unwise for a number of reasons. I believe removing the board from the Executive Office of the President would 

deprive the board of some of its greatest assets and tools, namely, 

the access, influence and authority that comes from working directly in the Executive Office for the President. The board has, in 

fact, benefited from unparalleled access to the relevant policymakers and program managers. 

Given the ongoing need for vigilance regarding privacy and civil 

liberties in the war against terrorism, it would be constitutionally 

and democratically preferable, in my opinion, for Congress to take 

the lead in providing fully independent oversight of the executive 

branch rather than subcontracting out this fundamental role to a 

free-floating body. Congress’s independent oversight of these crucial and delicate national security policy matters should not be delegated to an unaccountable, independent agency. 

Turning to the accomplishments during the board’s existence and 

the year ahead, our first annual report to Congress noted in considerable detail what the board has been doing since our first meeting 

in March of 2006. 

We have undertaken a substantive review of existing programs 

and policies, including the NSA surveillance program, Terrorist Finance Tracking Program, the Department of Defense’s Counterintelligence Field Activities and other programs, including the 

Watch List Memorandum of Understanding regarding the traveler 

redress program for individuals who find that they are on the nofly or selectee list, and we have been integrated into the implementation and drafting of the information-sharing guidelines. 

With that, my time is up, and I will look forward to answering 

any questions that the Committee may have. 

[The prepared statement of Mr. Raul follows:] 

18 

PREPARED STATEMENT OF ALAN CHARLES RAUL, ESQ. 


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Ms. SA ́ NCHEZ. Thank you, Mr. Raul. We appreciate your testimony. 

At this time, we would like to hear from Mr. Davis. 

Mr. Davis, you may begin your testimony. 

TESTIMONY OF LANNY J. DAVIS, ESQ., ORRICK, HERRINGTON 

& SUTCLIFFE, LLP, WASHINGTON, DC 

Mr. DAVIS. Thank you, Madam Chairwoman and Mr. Feeney. 

I would like to say first to Mr. Conyers, somebody who has been 

a political hero of mine since I was much, much younger and during the Clinton days was especially heroic, and it is nice to see you, 

sir. 

And to Congressman Cannon, proving the words of Alexander 

Hamilton in the congressman’s opening remarks that there are occasions where left and right not only come together but even in adversity become friends. And I appreciate it, Congressman Cannon, 

even when we sometimes disagreed on television. So nice to see 

you, sir. 

And to directly respond to your comments about my resignation, 

first of all, my colleague, Alan Raul, the staff of the Privacy Board 

on which I served and to President Bush who appointed me and 

especially to Fred Fielding, the White House counsel, I only have 

memories of honor and legitimate disagreement that led to my resignation, no suggestion whatsoever of bad faith or even partisan 

motives that led to our disagreement. 

The reason that I resigned was finally reaching the conclusion 

that the construct of the board was simply a square peg in a round 

hole. Congress tried to compromise between an independent board 

that would have oversight and a board within the White House 

that would have to have oversight of the very institution within 

which it resided. And while we all saw a contradiction and even a 

tension, as members of the board, we all thought we could work 

that out. And I thought that to a great extent we did have access, 

we were treated very well, and we were listened to. And I only 

have great memories of my service. 

What led to my final conclusion—and it was reluctant, and it 

was painful—was that it simply was not possible to have independent oversight while being treated as if we were a part of the 

White House staff. 

And the report to Congress led me to the conclusion that even 

if it were so, Congressman Cannon, that the red lines were only typographical errors and technical corrections—and that is not the 

case—the White House assumed that it had a right to take a report 

of our body, which was supposed to, under the statute, issue an annual report, edit it, review it, put it through OMG, circulate it, and 

send it back to us 2 days before submission with extensive redlining without even telling us that that was going to happen. 

Now, in fact, the substance of what happened—I would never 

have resigned if it was just typographic errors—were significant 

deletions of substantive parts of our report, especially relating to 

what we wanted to look at in the year ahead. 

For example, we wanted to look into the material witness statute 

which we had learned during one of our public hearings had civil 

liberties implications, and we had not ever looked at that. We reVerDate Aug 31 2005 14:01 Dec 17, 2008 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 H:\WORK\COMM\072407\37007.000 HJUD1 PsN: 37007
34 

ceived back the red line where that provision was deleted, as were 

other deletions. 

The material witness deletion, it was explained to us, was deleted not for substantive reasons and not for reasons of classified 

or sensitive information. We were told that it should be deleted because it might be confused with the U.S. attorneys controversy 

issue—in other words, an essentially political reason. 

So, without casting aspersions, I recognized that the White 

House was doing its job in staffing us out just as if we were part 

of the White House, which we were. And so I changed my mind and 

decided that the better way would be to have an independent agency where the White House would not feel it needed to vet, edit and 

review the work product of a board that was supposed to be doing 

oversight. 

But, again, having said that, everybody acted with correct motives, everybody did what they believed was right, and, most importantly, Fred Fielding was able to support the efforts of Alan Raul 

and myself and others to return to the original language that we 

had adopted, the very deletions that had caused me great concern. 

I chose not to continue, notwithstanding Fred Fielding’s support 

of my viewpoint, because I did not want every week or every other 

week to go back to Fred Fielding to ask him to intervene. I thought 

that the board needed fundamentally to be restructured, and that 

is why I reluctantly chose to resign. 

Ms. SA ́ NCHEZ. Thank you, Mr. Davis. We appreciate your testimony. 

Mr. CANNON. Madam Chair, may I ask unanimous consent to 

speak out of order for 1 minute? 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CANNON. Thank you. 

Mr. Davis and I have disagreed in the past, as he indicated. 

From my point of view, he is an eloquent speaker. 

And I just wanted to say to Mr. Davis, thank you for expressing 

those thoughts with such clarity and with such insight into the 

complexity of government and the jobs that each of us have as individuals and in describing your role as working on this board and 

the nature of the disagreement. I think that was remarkable. I appreciate it, and I just wanted to say that on the record. 

And, Madam Chair, I yield back. 

Mr. DAVIS. Thank you, sir. 

Ms. SA ́ NCHEZ. Thank you. 

Mr. Teufel? 

TESTIMONY OF HUGO TEUFEL III, ESQ., U.S. DEPARTMENT OF 

HOMELAND SECURITY, WASHINGTON, DC 

Mr. TEUFEL. Good afternoon, and thank you, Madam Chairwoman. Ranking Member Cannon, Chairman Conyers, Mr. Feeney, 

Mr. Franks, it is an honor to testify before you here today on the 

progress of the privacy office at the Department of Homeland Security and to review the findings and recommendations of the recent 

review of our office by the Government Accountability Office. 

I would like to thank Representatives Watt and Cannon for requesting this review, the recommendations of which were useful, 

and I believe some of GAO’s observations confirm progress in areas 

35 

that we have worked hard to improve. Oversight is a good thing. 

It fosters transparency and accountability, two of the Fair Information Practice principles that undergird the Privacy Act of 1974. 

I would also like to thank Linda Koontz and her team for the 

work that they have done on the GAO report and on privacy oversight generally. While we do not always agree on issues, I respect 

her greatly and enjoy immensely working with her. 

I was gratified to see GAO acknowledge the privacy office has 

made substantial progress both in the number and significantly the 

quality of Privacy Impact Assessments issued by our office. I attribute this to the hard work of my compliance staff and to our ongoing efforts to update our PIA guidance. We recently released a 

new version of the guidance and held a PIA workshop attended by 

over 100 people. 

The next PIA workshop will be offered at the DHS Annual Security Awareness Training Conference in late summer 2007, and I 

am confident that these efforts will support the trend of simultaneous increases in the number and quality of PIAs issued by the 

department. 

I was equally pleased to see in the GAO report that the privacy 

office has taken steps to integrate privacy into DHS decision-making. We call this important goal operationalizing privacy. To 

achieve this, the privacy office forms close relationships with system owners and program managers, along with I.T. security officials and senior DHS officials. 

By placing privacy into the program development and decisionmaking processes of the department, we can ensure that DHS not 

only meets its legal requirements and improves the effectiveness of 

the department’s programs, but stands as a model of how privacy 

can complement and work with law enforcement and intelligence 

agencies. 

I also want to mention that the privacy office report of the 

Science and Technology Directorate’s program, known as ADVISE, 

was released to the public yesterday. I know there is much interest 

in this report, and I understand that our Office of Legislative Affairs has provided electronic copies in PDF format to staff Members 

of the Committee. It is also available on our public Web site, 

dhs.gov/privacy. 

This report took longer than I had anticipated, but it is a thorough report covering a number of uses of the tool in various stages 

of development and use throughout a number of DHS components. 

The extra time will make the report much more informative and 

useful to the public, Members of Congress and the department programs planning to use ADVISE in the future. 

I thank the Subcommittee for this opportunity to testify about 

the accomplishments of the privacy office, and we look forward to 

demonstrating continued improvement in our efforts to ensure privacy is protected throughout the Department of Homeland Security. 

I look forward to answering your questions. 

[The prepared statement of Mr. Teufel follows:] 

36 

PREPARED STATEMENT OF HUGO TEUFEL III 


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Ms. SA ́ NCHEZ. Thank you, Mr. Teufel. 

Ms. Koontz? 

TESTIMONY OF LINDA KOONTZ, U.S. GOVERNMENT 

ACCOUNTABILITY OFFICE, WASHINGTON, DC 

Ms. KOONTZ. Madam Chairwoman and Members of the Subcommittee, I appreciate the opportunity to be here today to discuss 

progress made by the Department of Homeland Security’s privacy 

office. 

As you know, the Homeland Security Act of 2002 created at 

DHS, the first statutorily required senior privacy official at any 

Federal agency. The law mandated that this senior official assume 

primary responsibility for privacy policy, including assuring that 

the use of technology sustains and does not erode privacy protections relating to the use, collection and disclosure of personal information. 

At this Subcommittee’s and others’ requests, we reviewed the 

progress the DHS privacy office has made since it was formally established in 2003. I would like to briefly summarize our results. 

The privacy office has made significant progress in carrying out 

its statutory responsibilities under the Homeland Security Act and 

other laws. Specifically, the office has established processes for ensuring that the department complies with the E-Government Act 

requirement to conduct Privacy Impact Assessments before developing technology or initiating information collections that involve 

personal information. It has done this by developing a compliance 

framework including written guidance, a template for conducting 

the assessments, training and a process for identifying systems 

that require assessments. 

These actions have led to increased attention to privacy requirements. It has also proved beneficial in identifying systems that require an assessment, from 46 identified in 2005 to a projected 188 

in fiscal year 2007. 

However, the resulting workload is likely to prove difficult to 

process in a timely manner. Designating privacy officers in certain 

key department components could help speed the processing of assessments, but DHS has not yet done this. 

The office has also taken action to integrate privacy considerations into the departmental decision-making process by establishing a Federal advisory committee, conducting public workshops 

and participating in policy development for major departmental initiatives. These actions provide an opportunity for privacy concerns 

to be raised explicitly and early in the development of policies. 

While substantial progress has been made in these areas, limited 

progress has been made in other important aspects of privacy protection. For example, the office has reviewed, approved and issued 

56 new and revised public notices that are required under the Privacy Act. 

However, little progress has been made in updating notices for 

legacy systems, older collections of records originally designated 

and maintained by other agencies prior to the creation of DHS. As 

a result, the department cannot be assured that the privacy implications of its many systems that process personal information have 

been fully and accurately disclosed to the public. 

55 

Further, the privacy officer has not been timely in issuing public 

reports. For example, the office has issued only two of the required 

annual reports to the Congress in the past 3 years. In addition, its 

reports on investigations that the office conducted were, in some 

cases, not publicly released until long after concerns had been addressed. Late issuance of reports has a number of consequences beyond failure to comply with the law. It potentially reduces the 

value of these reports and erodes the credibility of the privacy office. 

Clearly, the DHS privacy office has made significant progress 

and has been a leader in the Federal Government. Nonetheless, 

much challenging work remains to be done. 

That concludes my statement. I would be happy to answer questions at the appropriate time. 

[The prepared statement of Ms. Koontz follows:] 

56 

PREPARED STATEMENT OF LINDA KOONTZ


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Ms. SA ́ NCHEZ. Thank you, Ms. Koontz. 

We will now proceed to our first round of questioning. Members 

will have 5 minutes to ask witnesses questions. We ask that you 

remain mindful of the time constraints that we are working under. 

I will begin by recognizing myself for 5 minutes. 

Mr. Davis, I am interested in your testimony because you were 

very clear about people working with correct motives in terms of 

the work the board was trying to accomplish, and yet you also mentioned an instance in which there were deletions made in the report for what you termed political reasons. 

How can you reconcile the two statements that you just made because it sort of seems inherent that if deletions were made for political reasons, there perhaps weren’t always the purest of motives? 

Mr. DAVIS. Well, I worked in the Clinton White House, and if an 

office of the Clinton White House were putting something out on 

its own without getting permission from the chief of staff or the 

press secretary and it happened to be a message that was out of 

political sync with what the Clinton White House wanted, the 

White House office would not be permitted to do that. 

It would have to go through the press secretary, the Office of 

Management and Budget, the White House chief of staff. The 

White House is an organization that has a hierarchy, so one doesn’t 

just put out public statements that may be out of sync with what 

the President or the White House’s critical message is. That is perfectly appropriate. 

That is what happened. Our report was viewed as simply an expression of a White House agency that needed to be cleared by various political substantive and bureaucratic methods that are very, 

very consistent with being treated as a White House office. 

When I accepted the job, I understood there was a hybrid trying 

to be accomplished, putting us in the White House as an office of 

the President, but trying to give us independent oversight authority. And I recognized ultimately the-square-peg-in-the-round-hole 

concept simply did not work, and that is why I resigned. 

Ms. SA ́ NCHEZ. Okay. I am interested in knowing then what you 

think that Congress could do to address the inherent tension involved in the somewhat questionable independence of the board 

when it provides oversight of the executive branch, while at the 

same time being part of the Executive Office of the President. 

Mr. DAVIS. Well, I changed my mind on this. I agreed with Alan, 

and we spoke to Senator Lieberman and Senator Collins and recommended that the office be kept within the White House but be 

granted investigative special independent powers, and that was our 

hope. 

When I saw what happened to our report and I recognized the 

bureaucratic, political and institutional pressures of being part of 

the White House, it was just too much to ask the White House not 

to act like the White House and treat us as an office of the White 

House. 

At one point, we did send a memo to the President, or tried to, 

in which we asked the President to issue an executive order that 

basically could be summarized by three words, ‘‘Leave them alone.’’ 

And that memo to the President and that executive order was 

never issued. 

84 

I do believe the new approach does better guarantee independence. I hope that Alan Raul and his concerns and others’ concerns, 

including myself, can be overcome by allowing the independent 

agency that would be the result of the legislation that I now understand is being considered to have the same access that we did, 

which was phenomenal access and which did lead me to some of 

the positive conclusions, for example, about the surveillance program in its execution that Congressman Cannon referred to. 

I had doubts, Congressman, which I would like to get into about 

the constitutional and legal validity of that program, which I now 

feel better about, now that they have FISA court approval. But the 

execution of the program and the people at the NSA executing it 

impressed me greatly as sensitive to civil liberties and privacy 

rights. 

Ms. SA ́ NCHEZ. Let me ask you this. I am interested in having you 

explain why the brief statement on the national security letter 

abuses by the FBI was relegated to the cover letter of the board’s 

first annual report to Congress and not included in the extensive 

discussion of that report. It seems to me that that is a pretty significant issue that—— 

Mr. DAVIS. I have a terrific personal angst about that topic, especially the man I am sitting next to who backed me up and also believed that the national security letter violations were egregious, of 

great concern, and to this day to me reflected an FBI out of control 

that had officers in the field violating the law with no effective 

oversight and to this day have great concern. 

For reasons that were beyond my comprehension, we set a date 

for March 1 of that report, and the I.G. report on the NSL letters 

came out in the middle of March. I wanted to include our critical 

comments about the national security letter abuses since it was so 

critical in our report, since it wasn’t due to the end of the month, 

and we had great resistance to doing that. 

The compromise, thanks to Alan’s support of my position and my 

support of Alan’s position, was to put it in the cover letter to the 

report where we were critical, but not in the report itself, something that to this day I still have never been able to understand. 

Ms. SA ́ NCHEZ. Well, thank you for your frankness. 

And at this time, my time has expired. I would like to recognize 

Mr. Cannon for 5 minutes of questioning. 

Mr. CANNON. Thank you, Madam Chair. 

Mr. Raul, do you agree with how Mr. Davis characterized your 

views to be? 

Mr. RAUL. Yes, for the most part. We had extensive discussions 

over the substance of the violations by the FBI not complying with 

the legal requirements for issuance of national security letters. We 

also, I think, were relatively congruent in our views about the importance of publicizing that in an important forum. 

So the question really became: Was it going to be in the body of 

the report, in the cover letter, or in an independent statement that 

would be issued to the press and on our Web site? The key point, 

though, is that we did make the substantive criticisms publicly. 

Mr. CANNON. And it seems to me that the cover letter would be 

really the place to do that. 

85 

Mr. RAUL. It had a prominence in the cover letter that it might 

have lost if it was in the body of it, but all the members of the 

board were agreed that it was important for the board to make a 

statement on this very important sensitive and not well-handled 

matter by the Federal Bureau of Investigation. 

Mr. CANNON. The important thing is how we make this office 

work or this board work better in the future. 

But can I just clarify one thing, Mr. Davis? In the final report, 

the piece that you objected to on the material witnesses was actually included in the report. I take it that is because you objected 

and then it went back in. 

Mr. DAVIS. Yes, that and a number of other deletions that were 

in the section called ‘‘the year ahead.’’ And it was thanks to Fred 

Fielding and my going to Fred Fielding and his backing me up and 

I must say Alan Raul’s support for returning those deletions that 

they were put back in. Most of them were put back in, not all. 

Mr. CANNON. I am personally a big fan of Fred Fielding. 

Mr. DAVIS. Me, too. 

Mr. CANNON. One of the bright stars out there. 

Let me just talk a little bit about your function and our function 

here, and then I want to take it back to the two of you to talk 

about where we should go, what we need to do, and this is where 

I have been out of sync with Republicans for the 10 or the 12 years 

they were in the majority. 

I think that Congress has an obligation to oversee. When Republicans took over, they had this idea that we would show the world 

that we could cut our own budget and, therefore, the rest of the 

agencies can do it as well, and we actually in fact cut spending. We 

did not cut the rate of growth of spending. We actually cut spending in 1996, the next cycle that the first Republican majority was 

in charge of, and that was a remarkable thing and I think the 

foundation for the huge growth we have had in our economy. 

I think that is very important, but at the same time, what we 

did was cut our budget by eliminating the oversight folks. Now the 

vast majority of what the Administration does, it does based upon 

laws and mandates, and there is very little discretion on the part 

of the President. But, on the other hand, when something goes 

wrong, the President of whichever party gets all the blame, and I 

think that is actually very counterproductive in our society. 

So I think—and I express this to my colleagues here—that we 

ought to be much more robust in oversight, in part because we 

have given mandates to the Administration. We ought to be making sure those happen, and whether that conflicts with the President, whether we are critical of even a political appointee or otherwise, ultimately, the country is better served by that sort of thing. 

Now you have spoken eloquently, Mr. Davis, about the square 

peg in the round hole and how this doesn’t work, and, on the other 

hand, it may have been fixed with an executive order saying, ‘‘Let 

them be.’’ 

And I take it, Mr. Raul, you would like to see this remain in the 

White House because of the kind of access it gets. Would you mind 

talking a little bit about what you think of where it appears we are 

headed on the board? 

And then, Mr. Davis, if you would respond? 

86 

And then, Mr. Raul, if you would follow up and—— 

Mr. RAUL. Yes, Mr. Cannon, thank you. I would love to address 

that. 

Let me preface my remarks here with what my views on this are 

for myself. I am a member of a collegial board of four members 

now, so I will express my views and not necessarily those of the 

chair or the full board. 

There is a distinction between the Executive Office of the President and the White House office. Colloquially, we refer to them the 

same, but the Executive Office of the President is a broader constellation of units that work directly for the President and serve 

the presidency but are not within the immediate staff of the White 

House. So the Executive Office of the President has, in addition to 

the White House office, OMB, the U.S. Trade Representative’s office, and, you know, other offices, Council on Environmental Quality and so on. 

The original legislation, the Intelligence Reform and Terrorism 

Prevention Act, established the privacy board in the Executive Office of the President. Congress then proceeded to appropriate funds 

for the board to the White House office. So there was a bit of a mismatch that occurred right then and there. 

As part of the Executive Office of the President, we have had access to anybody that we have sought access to with an ability to 

obtain information and exchange views on the most candid, freeflowing basis. Really, I think it is fair to say almost without any 

reservations or inhibitions. 

If the board, as it appears will be the case, is taken out of the 

Executive Office of the President, put at arm’s length from the executive branch, although part of the executive branch, we will have 

an inspector general type situation in contrast with the privacy and 

civil liberties officer type situation. 

We have heard Ms. Koontz in her testimony say that one of the 

positive attributes of Mr. Teufel’s office is that it is increasingly 

able, as I heard her say and as I understand it, to become involved 

in the development of policy early. That is different from a function 

that the inspector general plays and different from the function 

that Congress and its oversight function would play in judging 

whether the Administration has carried out the laws faithfully. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

At this time, I would like to recognize Mr. Conyers for 5 minutes. 

Mr. CONYERS. Thank you, Madam Chairman. 

I appreciate the witnesses’ testimony. 

I am so glad that we have talked about the national security letters. The head of the Federal Bureau of Investigation, Mr. Mueller, 

will be before us in 2 days, and we have the same concerns that 

you have already expressed, and so I thank you both for raising 

that. 

And I compliment Attorney Raul for working as closely as he did 

in many instances with Lanny Davis. 

Mr. RAUL. Thank you. 

Mr. CONYERS. That gives me hope. 

Now, just to get one matter out of the way, Mr. Teufel, we received this report. It came into the staff’s office at about 9:30 this 

morning. 

87 

Mr. TEUFEL. Yes, sir. 

Mr. CONYERS. As far as I know, nobody has been able to read it. 

We don’t know what is inside it. And you knew you were going to 

be a witness. Couldn’t this have arrived maybe 24 hours earlier? 

Mr. TEUFEL. It could have, sir, and I would be happy to come and 

speak with you and your staff about the report and all the time 

that you would like to talk about it, sir. 

Mr. CONYERS. And if we held another hearing for that, would you 

come to that? 

Mr. TEUFEL. Absolutely, sir. At your convenience. 

Mr. CONYERS. Well, my convenience would have been that you 

delivered it a day earlier. 

Mr. TEUFEL. Yes, sir. 

Mr. CONYERS. We could do it here. 

Mr. TEUFEL. Yes, sir. 

Mr. CONYERS. I mean, we are holding a hearing right now. 

Mr. TEUFEL. Yes, sir. 

Mr. CONYERS. So what is in the report, just real quickly? I mean, 

what can you say about the report in a sentence or two? 

Mr. TEUFEL. Well, in a sentence or two, sir, ADVISE is a tool 

that the Science and Technology Directorate came up with. It is a 

tool for making clearer links between data or among data. 

Mr. CONYERS. Okay, stop. 

Mr. TEUFEL. Yes, sir. 

Mr. CONYERS. I can see under the 5-minute rule that we are not 

going to get very far down the line here. 

Now, Lanny Davis, I would like to know what you think of the 

situation that exists right now. We have a whole string of problems 

inside the United States that deal with constitutional discretion, 

abuses of the executive power. We can hardly get anything here. 

We actually had the Republican National Committee raising executive privilege as a reason they could not give us documents. 

They dropped it. It was too ludicrous. I guess nobody could take 

that, a political party claiming presidential privilege. 

But we have a whole string of problems here, and I would like 

you to comment on whether you see them as serious and as complicated that it would lead me and Chris Cannon both to quote Alexander Hamilton. 

Mr. DAVIS. I tried to be consistent with how I felt in the Clinton 

White House when I felt congressional oversight and subpoenas 

were being abused for political purposes, and the assertion of executive privilege to us made sense when we thought that Congress 

was abusing its investigatory powers for partisan purposes. 

So there is an institutional perspective from a separate branch 

of government called the White House and executive branch when 

Congress appears to be overly intrusive. 

Mr. CONYERS. Whoa. You—— 

Mr. DAVIS. On the other hand, I have great concerns that this 

Administration and this White House have so far gone in the other 

direction that they appear to define executive power as completely 

regardless of congressional oversight responsibilities, to the point 

where I believe that the NSA program itself was launched and implemented, and several years later, somebody finally caught up in 

88 

the Justice Department that we need legal authority to do what we 

are doing. 

And they got the legal authority in a very creative and, I 

thought, legally correct fashion, but why 3 or 4 years after beginning the surveillance program? Why not do it right away? And I 

think that flows from an assumption among some people in this 

particular White House that there is something called the unitary 

presidency. Whatever that means, it means we are the only branch 

of government that counts. 

So the pendulum appeared to me, while I was there in the White 

House, to have swung too far in one direction of congressional 

abuse of investigatory oversight authority. Now appears to have 

swung too far in the direction of ignoring congressional legitimate 

oversight—subpoenas, requests for documents, requests for testimony. 

If the Clinton White House had ever said, with all due respect, 

to Congressman Burton, ‘‘You can interview us, but not under oath, 

no transcript, and we are not going to appear in front of you,’’ my 

good friend, Congressman Chris Cannon, on ‘‘Crossfire’’ that night 

would have killed me. You have to be kidding me? Not under oath, 

no transcript, and you expect that to satisfy congressional oversight? 

And the deafening silence of this particular Congress, Republican 

and Democratic, to the notion that somebody should be interviewed 

by the Congress and no transcript, put aside not under oath, to me 

strikes me as the pendulum going too far. 

But I do hope that Democrats will be intellectually consistent 

and grant that there is a proper assertion of executive privilege 

when the subpoena power and congressional investigations go too 

far. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. DAVIS. Sorry to speak so long. 

Mr. CONYERS. No, I thank you. And I don’t have any time for 

questions, but I want to assure you that the 7 months of this Committee’s existence, the Judiciary Committee, we have been very 

careful about politicizing or turning into a partisan endeavor or 

some wide search for information far beyond our oversight capacity. 

And so I thank you for your comments. 

Ms. SA ́ NCHEZ. I thank the gentleman. 

The gentleman from Arizona, Mr. Franks, is recognized for 5 

minutes for questioning. 

Mr. FRANKS. Thank you, Madam Chair. 

I thank all of you for coming here. 

Again, I would like to express my personal appreciation, Mr. 

Davis, too. It is not so often that someone is so eloquent in what 

seems to be a genuine attitude of bipartisanship and a commitment 

to—— 

Mr. DAVIS. Thank you. 

Mr. FRANKS [continuing]. Saying what they believe in an unbiased fashion, even if there might be some of us that take issue with 

some of it. 

Mr. Teufel, how would you characterize the interaction between 

your office and the Privacy and Civil Liberties Oversight Board? 

89 

And do you think that relationship would improve or deteriorate if 

the board was taken out of the White House? 

Mr. TEUFEL. Well, sir, I would describe the relationship as a very 

good one. The relationship is on two levels. 

First is at the working level, and by that I mean that my colleague at the department, Dan Sutherland, the civil rights and civil 

liberties officer, and I regularly meet with Mark Robbins, who is 

executive director for the Privacy and Civil Liberties Oversight 

Board; Alex Joel who is the privacy and civil liberties officer at 

OD&I; and Jane Horvath at Department of Justice; and other privacy officers. And so we meet and talk fairly regularly about issues. 

And then also in the more formal sense that my office interacts 

with the Privacy and Civil Liberties Oversight Board, the secretary 

and I have spoken to the board on a couple of occasions, and we 

routinely make available information to the board at its request 

whenever it wants to know something about what we are doing or 

what the department is doing. So we have a very good relationship. 

I am not sure what the differences would be if the office were 

moved outside of the White House. I think my concern would probably be that there might be a change, and it might be a more adversarial relationship generally between the new office and the executive branch. But, sir, I just cannot tell you. I don’t know. 

Mr. FRANKS. If you were to point to the greatest single achievement that your office has had and perhaps even go further and tell 

us what you think the best way to improve the office would be in 

just an overall fashion, I might pose that to some of the other members as well. 

Mr. TEUFEL. Well, sir, the best thing to improve the office would 

be within the President’s budget, there is a request for funding for 

additional slots within the office. My office is responsible for Freedom of Information and also Privacy Act compliance, System of 

Records Notices and Privacy Impact Assessments, and the President’s budget asks for additional folks to assist in those areas. I 

have 211 legacy agency System of Records Notices that I have, and 

I am determined before I leave to review and get up to date, and 

we could use the help. 

In terms of what I have done so far, it is further infusing the culture of privacy within the department and helping to regularize our 

approach to work product. We still, as Chairman Conyers noted, 

have a long ways to go with respect to reports, but we are making 

great improvements in terms of getting out reports. 

I just looked at our draft annual report for this last year, July 

to July, and read through it, gave my comments to my staff, and 

we are going to get it through the review process and get it out and 

up to Congress in September. 

So that is what I would say in answer to your question, sir. 

Mr. FRANKS. You know, as a political appointee, when an Administration’s in its last couple of years, I think you have 18 months 

left. It is always kind of a challenging question, I know, but what 

do you plan to do with the remaining 18 months that you have in 

office? 

Mr. TEUFEL. Work on the recommendations of the GAO report, 

get the remaining 211 legacy agency System of Records Notices up 

to date, continue to do the good work of the department, and I have 

90 

no plans over the next 18 months. Unless the National Guard deploys me, I will be here at the job, sir. 

Mr. FRANKS. Would anyone else on the panel like to take a shot 

at what do you think would be the most significant thing that could 

be done to improve the office and its function? 

Yes, ma’am? 

Ms. KOONTZ. I would just like to underscore a couple of our recommendations. 

Two of the biggest challenges that the privacy office faces is, 

number one, the reporting issue. The reports have taken a long 

time for them to be finalized, although there seems to be some improvement more recently, and I think that putting some more discipline around that review process could help speed up the issuance 

of those reports, and it sounds like some of the things that Mr. 

Teufel is doing may help in that regard. 

I would think secondly the public notices that are supposed to be 

issued on the Privacy Act, they have a huge workload ahead of 

them, and one of the things that we thought would help that, actually, the privacy office originally recommended as well, and that is 

establishing privacy officers in certain of the key components in 

DHS to help speed along this process. 

So I look forward to working with them on implementing those 

recommendations. 

Mr. FRANKS. Thank you, all. 

Thank you, Madam Chair. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

The gentleman from North Carolina, Mr. Watt, is recognized for 

5 minutes. 

Mr. WATT. Thank you, Madam Chair. 

And let me first apologize to the witnesses for not being present 

to hear their testimony. Unfortunately, I had, as we often do, two 

or three different places, all important, to be in at the same time. 

And I especially want to apologize to my good friend and former 

classmate, Lanny Davis—we go back a long way—and applaud, as 

he has already been applauded, his willingness to speak appropriate positions that he believes in, regardless of which way they 

cut politically. 

It is that point that I would like to focus on first and maybe then 

pick up a second point if we can get this one, and that is the distinction between what our Committee has been pursuing with this 

Administration and the way in which some of the oversight was 

done in the last Administration. 

Am I correct that it got to a point with the last Administration 

that Congress was or at least one of the Committees was actually 

issuing subpoenas before they even contacted the agencies to request certain information? 

Mr. DAVIS. Yes. At the Clinton White House, we were accustomed to receiving subpoenas even before a request for documents 

and a negotiation, which is traditionally the way it is done, and we 

were accustomed at times to try to negotiate something short of the 

subpoena because they were usually very broad and sometimes 

would require emptying all the file cabinets of the White House for 

fear that if you missed one piece of paper, you would be in an obstruction of justice charge. 

91 

So we were frequently concerned about the premature issuance 

of subpoenas, but we never would have conceived of defying one. 

We frequently fantasized about it, but we never actually did it. 

Mr. WATT. What are some of the other distinctions that you 

would draw? I am not trying to draw you into an endorsement of 

our process versus what was happening in the last Administration 

with congressional oversight, but what are some of the other distinctions that we might be alert to in trying to make sure that we 

stay far from the line where we appear to be being on some partisan endeavor as opposed to the genuine business of oversight? 

Mr. DAVIS. I think conversations and communications between 

staff and the President would be something, whether I am a Democrat or a Republican, I would be very sensitive to, even if it is a 

politically attractive issue. And I am referring to the U.S. attorneys 

issue, which I think there really is serious potential wrongdoing 

that causes me concern, and congressional oversight, I think, is 

necessary. 

Still, communications between individuals and the President 

would, to me, be a line to draw. 

Mr. WATT. But if there are people on record as saying that the 

President had no involvement with a particular issue, would that 

seem to be a sufficient basis for discounting that as a major factor? 

Mr. DAVIS. I think the Justice Department has an obligation to 

disclose everything there is to be disclosed about communications 

between the Justice Department and the White House on that 

issue because there is serious possible impropriety. 

I draw the line about White House staff communicating with the 

President. We were very sensitive to those requests for documents 

for testimony involving communications with the President, but, 

having said that, Congressman Watt, we ultimately surrendered 

and after fighting a while, we ended up saying to ourselves, ‘‘Why 

fight if we are going to give up? This is a transparent process we 

are in. Congress is going to continue to insist that we do this.’’ And 

we ended up giving it up. 

Mr. WATT. Before my red light goes off, let me see if I can shift 

to the second area because it strikes me that the Privacy and Civil 

Liberties Oversight Board is kind of to the executive branch the 

equivalent of what a privacy office would be in a particular agency. 

Is that an accurate assessment, and if so, how have the agencies 

themselves avoided the same kind of potential conflicts that gave 

rise to your resignation? 

Mr. DAVIS. The big difference—and it goes back to Congressman 

Cannon and I in our conversation—is we were a creation of the 

Congress and the word ‘‘oversight’’ was put into our name and the 

legislative history required us to report to Congress and to do oversight. 

The privacy officers are supposed to be internal as watchdogs 

within the agency, but the word ‘‘oversight,’’ to me at least and I 

believe to my colleagues, meant that we could be critical and a public critic, if necessary, to the Congress as a public entity, not a private agency as staff to the President, but a public accountability 

doing oversight, and that is where the square-peg-and-the-roundhole problem occurred. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

92 

Mr. WATT. Thank you, Madam Chair. 

Ms. SA ́ NCHEZ. Thank you. 

I have been informed that we have a couple of outstanding questions, so I am going to ask unanimous consent that I be allowed 

2 more minutes for questioning. 

And, without objection, so ordered. 

Mr. WATT. Can I reserve the right to object just long enough to 

inquire, does that mean that we are doing another round of 2 minutes each? 

Ms. SA ́ NCHEZ. We were trying to avoid doing a second round of 

5 minutes each. I have a very brief question I would like to ask. 

Mr. WATT. What about 2 minutes each? 

Ms. SA ́ NCHEZ. If there is no objection. 

Mr. CANNON. I would have no objection to the gentleman taking 

an additional 2 minutes. 

Ms. SA ́ NCHEZ. We will do them all. Does that satisfy the gentleman from North Carolina? 

Mr. WATT. Yes, Madam Chair. 

Ms. SA ́ NCHEZ. Okay. 

Mr. Raul, page 22 of the board’s first annual report to Congress 

states that, ‘‘In order to maximize the board’s effectiveness and to 

prevent the diffusion of its limited resources across too many programs, the board has elected to concentrate on the United States 

and U.S. persons.’’ Footnote 46 on page 22 of the report, however, 

notes that the board may revisit that determination. 

Is the reason that the board chooses to limit its scope because 

of funding or because of some other reason? Do you know? 

Mr. RAUL. It was our view that nothing in the statute, Intelligence Reform and Terrorism Prevention Act, or legislative history 

or any of the comments of the 9/11 Commission, which was one of 

the entities that recommended the creation of a board like ours, 

had focused on extraterritorial impacts. The focus was on the 

American way of life, privacy and civil liberties for Americans. So 

I think that we had a robust debate internally after substantial 

legal analysis as to what was required and what was permitted. 

Speaking for myself of what my view of both the law is and of 

our decision on this point, we felt that it was not entirely clear that 

the board was authorized or precluded from considering international or non-domestic issues, as privacy and civil liberties might 

affect non-U.S. persons. So we thought that it was possible that we 

had the authority to go in that direction, but not required. 

Ms. SA ́ NCHEZ. Do you think it would make sense if Congress 

wanted to, for example, review civil liberties questions raised by 

detainees at Guantanamo and to meet the mission and mandate of 

the Intelligence Reform and Terrorism Prevention Act of 2004 that 

it should express a legislative mandate for the board to review 

those areas? Would that help clarify some of the confusion? 

Mr. RAUL. Well, that would certainly clarify the confusion. 

Whether it would be prudent to do so is a question that I leave to 

you, and if it gets to the President, the President. Obviously, where 

you trench upon commander in chief and foreign affairs responsibilities, a different set of constitutional considerations come into 

play, but I would certainly agree with you, Madam Chairwoman, 

that it would clarify the confusion or uncertainty. 

93 

Mr. DAVIS. Could I just add 30 seconds? There was a good debate 

on this issue, and my personal opinion was that when an American 

citizen under the power of our government snatches somebody in 

a rendition and puts them in prison in Syria and tortures them, it 

doesn’t matter to me whether that individual is an American citizen or a non-American citizen. That is a matter that our American 

values have been compromised, and the board should be looking 

into that. 

So we had a disagreement on that, Guantanamo and other 

issues, and the sentence you just read was the compromise that we 

focus on the word ‘‘priorities,’’ but there was serious disagreement 

about whether Congress intended us to be worried about American 

government officials doing that to non-American citizens, and we 

did—I think Alan is right—think the Congress should have been 

much clearer in mandating whether they wanted us to do that. 

Ms. SA ́ NCHEZ. Thank you, Mr. Davis. 

I understand that the gentleman from Michigan seeks to be recognized. 

Mr. CONYERS. Yes, I ask unanimous consent to proceed for a few 

minutes. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CONYERS. Thank you. 

I am so glad that this issue was raised by yourself, Chairwoman 

Sa ́nchez, because I wanted to put in the record an examination of 

the President’s executive order of last Friday in which he issued an 

executive order supposedly clearing up the question of the condemnation of torture in this country. As David Cole points, it was 

full of loopholes and cleared up little or nothing. And I ask unanimous consent to put it in the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The information referred to follows:] 

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Mr. CONYERS. The main question, though, is to our GAO representative, Ms. Koontz. What are these four recommendations 

that you boiled your testimony down, plus the observation that the 

privacy office hasn’t been timely in issuing public reports, potentially limiting their value and impact. 

If you are not well-read in this kind of language, it seems like 

administrative, you know, ‘‘Let’s be neat, let’s be on time, fellows.’’ 

But I suspect there is something far more serious in why you put 

together a lengthy report that comes to these conclusions. 

Ms. KOONTZ. I had hoped our report sounded more powerful than 

that, but I will give you an example. 

There was a report down on the multistate antiterrorism exchange. It was started in 2004 based on an ACLU complaint. It 

was not issued until 2006. I would say another example would be 

a data-mining report that was asked under Appropriations Act. It 

was due in December 2005. It wasn’t completed until July 2006, 

but then not made public until late in that year. 

I think in some of these cases, especially in the first one I mentioned, the program had already been terminated well before the 

report was issued. Our point was that it is not so much bean counting as it was that this was no longer a useful communication with 

the public, and a large amount of privacy is being transparent with 

the public, saying what you are doing with citizens’ personal information. 

Mr. CONYERS. So stalling is a way of obfuscation? 

Ms. KOONTZ. It could be. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. WATT. Madam Chair, I ask unanimous consent for a modicum less than a few minutes. 

Ms. SA ́ NCHEZ. You will be granted 2 additional minutes, Mr. 

Watt. 

Mr. WATT. Okay. Well, I was thinking that I would not dare ask 

for what the Chair of the full Committee asked for, but if I asked 

for something less than that, I will get it. 

Mr. Teufel, just in follow-up to the question that I raised with 

Mr. Davis, have there been situations in the Homeland Security 

privacy setting where you have felt either that the people above 

you in Homeland Security or the Administration have sought to 

compromise your findings and your efforts to do what you are 

charged to do? 

Mr. TEUFEL. No, sir, I have not. And with respect to reports, I 

have a very senior career official within my office, and whenever 

we get ready to issue a report, that senior career official takes the 

pen. She is incorruptible, she has career protections, and she decides what goes into a report and what doesn’t go into a report 

when we send it around for review. So I have not seen that, and 

we have not had those issues, sir. 

Mr. WATT. The second question I wanted to ask: we spent a lot 

of time when we were putting this system together debating whether the authority to issue subpoenas was important. What, if anything, have you found on that? I don’t know. I mean, I am not trying the program, but for future reference, it would be helpful to 

know, Mr. Raul, for planning. 

98 

Mr. RAUL. Mr. Watt, on the subpoena authority, this is not something that the board has requested or really to date found necessary. As I understand it, the pending legislation—— 

Mr. WATT. Not that this Administration would honor any of them 

anyway. 

Mr. RAUL. Well, you see, but this is the irony. The subpoena authority that is under discussion, as I understand it, is whether the 

privacy board can issue subpoenas, and if so, are the subpoenas to 

be issued to private parties or to other government agencies. 

I believe that the language that was in H.R. 1 would have authorized the board to issue subpoenas to private entities and not 

to the government. That is the way the inspector general statutes 

were. 

I am not sure how essential the issuance of subpoenas to private 

parties for the executive branch Privacy and Civil Liberties Oversight Board really is, so I think that the issue is perhaps a bit of 

a tangent for us. We have not found it a problem not to have it. 

If we had subpoena authority for private entities, I am not sure 

that there would be a serious constitutional issue there, so I think 

the issue is a bit of a tangent. 

Mr. WATT. I thank the gentlelady. These were just follow-ups to 

some concerns I had. I wasn’t trying to prolong this, and I appreciate the extra time. 

Ms. SA ́ NCHEZ. Thank you, Mr. Watt. I appreciate the questions. 

Mr. Franks? 

Mr. FRANKS. Thank you, Madam Chair. 

Madam Chair, I will be very brief, just to comment related to Mr. 

Davis and Chairman Conyers. 

Ms. SA ́ NCHEZ. Without objection, you will be granted 1 minute. 

Mr. CONYERS. I ask unanimous consent for 2 minutes. 

Mr. FRANKS. I will do 1. That will be fine. 

Ms. SA ́ NCHEZ. Mr. Franks has told us he could be significantly 

briefer than both of you. So he has only requested 1. [Laughter.] 

One additional minute. 

Mr. FRANKS. Thank you, Madam Chair. 

Related to any torture policy of the United States, being on the 

Armed Services Committee, it is my conviction that the policy nor 

the practice of this country has been to torture. In fact, the penalty 

for torture is 20 years in prison, and if the person tortured dies, 

the death penalty is appropriate, according to our policy. 

So I don’t think that policy has been diminished in any way 

under this Administration, and I just wanted to make sure that 

that is on the record. 

Thank you, Madam Chair. 

Mr. WATT. Will the gentleman yield? 

Mr. FRANKS. Sure. You have 20 seconds here. 

Mr. WATT. Does that apply if the torture takes place in another 

country after somebody has been rendered to someplace else? 

Mr. FRANKS. Madam Chair, I just answered the gentleman’s 

question. I do not believe that is the policy nor the practice of this 

Administration to torture anybody in this country or otherwise. 

The Abu Ghraib situation was abuse. But torture is very well-defined. 

99 

Mr. WATT. The gentleman may have misunderstood the question 

I was asking. Do the criminal penalties apply if we render somebody to another country and the torture takes place where we have 

not been active participants in the torture? 

Mr. FRANKS. Madam Chair, the gentleman probably is asking 

whether or not the prisoners are under the constitution or the laws 

of the United States, and, no, I don’t think they are. They would 

be under the Military Code of Justice. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

And that will conclude our rounds of questioning. 

I want to thank the witnesses again for their testimony today 

and for making yourselves available for questions. 

Without objection, Members will have 5 legislative days to submit any additional written questions, which we will forward to the 

witnesses and ask that you answer as promptly as you can so that 

they can be made a part of this record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any additional materials. 

I want to thank everybody for their time and their patience, and 

the hearing of the Subcommittee on Commercial and Administrative Law is adjourned. 

Mr. DAVIS. Thank you. 

[Whereupon, at 3:11 p.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

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ANSWERS TO POST-HEARING QUESTIONS POSED BY THE HONORABLE LINDA T. 

SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND

CHAIRWOMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW TO THE

HONORABLE ALAN CHARLES RAUL, ESQ., PRIVACY AND CIVIL LIBERTIES OVERSIGHT

BOARD, THE WHITE HOUSE, WASHINGTON, DC 


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ANSWERS TO POST-HEARING QUESTIONS POSED BY THE HONORABLE LINDA T. 

SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND

CHAIRWOMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW TO THE

HONORABLE HUGO TEUFEL III, ESQ., U.S. DEPARTMENT OF HOMELAND SECURITY


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SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA, AND

CHAIRWOMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW TO MS. 

LINDA KOONTZ, U.S. GOVERNMENT ACCOUNTABILITY OFFICE


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FROM THE STATE OF CALIFORNIA, AND CHAIRWOMAN, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW


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