I 

109TH CONGRESS 

2D SESSION H. R. 5000 

To amend the Intelligence Reform and Terrorism Prevention Act of 2004 

with respect to the Privacy and Civil Liberties Oversight Board, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 16, 2006 

Mr. SHAYS (for himself, Mrs. MALONEY, Mr. UDALL of New Mexico, Mr. 

CASE, Mr. OWENS, Mr. STARK, and Mr. THOMPSON of Mississippi) introduced the following bill; which was referred to the Committee on Government Reform, and in addition to the Committees on the Budget, Judiciary, Homeland Security, and Select Intelligence (Permanent Select), for 

a period to be subsequently determined by the Speaker, in each case for 

consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To amend the Intelligence Reform and Terrorism Prevention 

Act of 2004 with respect to the Privacy and Civil Liberties Oversight Board, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘9/11 Commission Civil 

5 Liberties Board Act’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds the following: 

3 (1) On July 22, 2004 the National Commission 

4 on Terrorist Attacks Upon the United States (also 

5 known as the 9/11 Commission) issued a report that 

6 included 41 specific recommendations to help pre7 vent future terrorist attacks, including details of a 

8 global strategy and government reorganization nec9 essary to implement that strategy. 

10 (2) One of the recommendations focused on the 

11 protections of civil liberties. Specifically the following 

12 recommendation was made: ‘‘At this time of in13 creased and consolidated government authority, 

14 there should be a board within the executive branch 

15 to oversee adherence to the guidelines we rec16 ommend and the commitment the government makes 

17 to defend our civil liberties.’’. 

18 (3) The report also states that ‘‘the choice be19 tween security and liberty is a false choice, as noth20 ing is more likely to endanger America’s liberties 

21 than the success of a terrorist attack at home. Our 

22 History has shown that the insecurity threatens lib23 erty at home. Yet if our liberties are curtailed, we 

24 lose the values that we are struggling to defend.’’. 

25 (4) On December 17, 2004, Public Law 108– 

26 458, the National Intelligence Reform Act, was 


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1 signed into law. This law created a civil liberties 

2 board that does not have the authority necessary to 

3 protect civil liberties. 

4 (5) The establishment and adequate funding of 

5 a Privacy and Civil Liberties Oversight Board was 

6 a crucial recommendation made by the 9/11 Com7 mission. 

8 (6) In its Final Report on 9/11 Commission 

9 Recommendations, the Commission noted ‘‘very little 

10 urgency’’ and ‘‘insufficient’’ funding as it relates to 

11 the establishment of the Privacy and Civil Liberties 

12 Oversight Board. 

13 (7) While the President’s budget submission for 

14 fiscal year 2006 included $750,000 for the Privacy 

15 and Civil Liberties Oversight Board, the President’s 

16 budget submission for fiscal year 2007 does not con17 tain a funding line for the Board. 

18 SEC. 3. MAKING THE PRIVACY AND CIVIL LIBERTIES OVER19 SIGHT BOARD INDEPENDENT. 

20 Section 1061(b) of the Intelligence Reform and Ter21 rorism Prevention Act of 2004 is amended by striking 

22 ‘‘within the Executive Office of the President’’ and insert23 ing ‘‘as an independent agency within the Executive 

24 branch’’. 


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1 SEC. 4. REQUIRING ALL MEMBERS OF THE PRIVACY AND 

2 CIVIL LIBERTIES OVERSIGHT BOARD BE CON3 FIRMED BY THE SENATE. 

4 Subsection (e) of section 1061 of the Intelligence Re5 form and Terrorism Prevention Act of 2004 is amended 

6 to read as follows: 

7 ‘‘(e) MEMBERSHIP.— 

8 ‘‘(1) MEMBERS.—The Board shall be composed 

9 of a full-time chairman and 4 additional members, 

10 who shall be appointed by the President, by and 

11 with the advice and consent of the Senate. 

12 ‘‘(2) QUALIFICATIONS.—Members of the Board 

13 shall be selected solely on the basis of their profes14 sional qualifications, achievements, public stature, 

15 expertise in civil liberties and privacy, and relevant 

16 experience, and without regard to political affiliation, 

17 but in no event shall more than 3 members of the 

18 Board be members of the same political party. The 

19 President shall, before appointing an individual who 

20 is not a member of the same political party as the 

21 President consult with the leadership of that party, 

22 if any, in the Senate and House of Representatives. 

23 ‘‘(3) INCOMPATIBLE OFFICE.—An individual 

24 appointed to the Board may not, while serving on 

25 the Board, be an elected official, officer, or employee 


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1 of the Federal Government, other than in the capac2 ity as a member of the Board. 

3 ‘‘(4) TERM.—Each member of the Board shall 

4 serve a term of six years, except that— 

5 ‘‘(A) a member appointed to a term of of6 fice after the commencement of such term may 

7 serve under such appointment only for the re8 mainder of such term; 

9 ‘‘(B) upon the expiration of the term of of10 fice of a member, the member shall continue to 

11 serve until the member’s successor has been ap12 pointed and qualified, except that no member 

13 may serve under this subparagraph— 

14 ‘‘(i) for more than 60 days when Con15 gress is in session unless a nomination to 

16 fill the vacancy shall have been submitted 

17 to the Senate; or 

18 ‘‘(ii) after the adjournment sine die of 

19 the session of the Senate in which such 

20 nomination is submitted; and 

21 ‘‘(C) the members initially appointed under 

22 this subsection shall serve terms of two, three, 

23 four, five, and six years, respectively, from the 

24 effective date of this Act, with the term of each 

25 such member to be designated by the President. 


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1 ‘‘(5) QUORUM AND MEETINGS.—The Board 

2 shall meet upon the call of the chairman or a major3 ity of its members. Three members of the Board 

4 shall constitute a quorum.’’. 

5 SEC. 5. SUBPOENA POWER FOR THE PRIVACY AND CIVIL 

6 LIBERTIES OVERSIGHT BOARD. 

7 Section 1061(d) of the Intelligence Reform and Ter8 rorism Prevention Act of 2004 is amended— 

9 (1) so that subparagraph (D) of paragraph (1) 

10 reads as follows: 

11 ‘‘(D) require, by subpoena issued at the di12 rection of a majority of the members of the 

13 Board, persons (other than departments, agen14 cies, and elements of the executive branch) to 

15 produce any relevant information, documents, 

16 reports, answers, records, accounts, papers, and 

17 other documentary or testimonial evidence.’’; 

18 and 

19 (2) so that paragraph (2) reads as follows: 

20 ‘‘(2) ENFORCEMENT OF SUBPOENA.—In the 

21 case of contumacy or failure to obey a subpoena 

22 issued under paragraph (1)(D), the United States 

23 district court for the judicial district in which the 

24 subpoenaed person resides, is served, or may be 


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1 found may issue an order requiring such person to 

2 produce the evidence required by such subpoena.’’. 

3 SEC. 6. REPORTING REQUIREMENTS. 

4 (a) DUTIES OF BOARD.—Paragraph (4) of section 

5 1061(c) of the Intelligence Reform and Terrorism Preven6 tion Act of 2004 is amended to read as follows: 

7 ‘‘(4) REPORTS.— 

8 ‘‘(A) RECEIPT, REVIEW, AND SUBMIS9 SION.— 

10 ‘‘(i) IN GENERAL.—The Board shall— 

11 ‘‘(I) receive and review reports 

12 from privacy officers and civil liberties 

13 officers described in section 212; and 

14 ‘‘(II) periodically submit, not less 

15 than semiannually, reports to the ap16 propriate committees of Congress, in17 cluding the Committees on the Judici18 ary of the Senate and the House of 

19 Representatives, the Committee on 

20 Homeland Security and Governmental 

21 Affairs of the Senate, the Committee 

22 on Government Reform of the House 

23 of Representatives, the Select Com24 mittee on Intelligence of the Senate, 

25 and the Permanent Select Committee 


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1 on Intelligence of the House of Rep2 resentatives, and to the President. 

3 Such reports shall be in unclassified form 

4 to the greatest extent possible, with a clas5 sified annex where necessary. 

6 ‘‘(ii) CONTENTS.—Not less than 2 re7 ports the Board submits each year under 

8 clause (i)(II) shall include— 

9 ‘‘(I) a description of the major 

10 activities of the Board during the pre11 ceding period; 

12 ‘‘(II) information on the findings, 

13 conclusions, and recommendations of 

14 the Board resulting from its advice 

15 and oversight functions under sub16 section (c); 

17 ‘‘(III) the minority views on any 

18 findings, conclusions, and rec19 ommendations of the Board resulting 

20 from its advice and oversight func21 tions under subsection (c); and 

22 ‘‘(IV) each proposal reviewed by 

23 the Board under subsection (c)(1) 

24 that the Board advised against impleVerDate Aug 31 2005 20:22 Mar 20, 2006 Jkt 049200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5000.IH H5000

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1 menting, but that notwithstanding 

2 such advice, was implemented. 

3 ‘‘(B) INFORMING THE PUBLIC.—The 

4 Board shall— 

5 ‘‘(i) make its reports, including its re6 ports to Congress, available to the public 

7 to the greatest extent that is consistent 

8 with the protection of classified informa9 tion and applicable law; and 

10 ‘‘(ii) hold public hearings and other11 wise inform the public of its activities, as 

12 appropriate and in a manner consistent 

13 with the protection of classified informa14 tion and applicable law.’’. 

15 (b) PRIVACY AND CIVIL LIBERTIES OFFICERS.—Sec16 tion 1062 of the Intelligence Reform and Terrorism Pre17 vention Act of 2004 is amended to read as follows: 

18 ‘‘SEC. 1062. PRIVACY AND CIVIL LIBERTIES OFFICERS. 

19 ‘‘(a) DESIGNATION AND FUNCTIONS.—The Attorney 

20 General, the Secretary of Defense, the Secretary of State, 

21 the Secretary of the Treasury, the Secretary of Health and 

22 Human Services, the Secretary of Homeland Security, the 

23 National Intelligence Director, the Director of the Central 

24 Intelligence Agency, any other entity within the intel25 ligence community (as defined in section 3 of the National 


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1 Security Act of 1947 (50 U.S.C. 401a)), and the head of 

2 any other department, agency, or element of the executive 

3 branch designated by the Privacy and Civil Liberties Over4 sight Board to be appropriate for coverage under this sec5 tion shall designate not less than 1 senior officer to— 

6 ‘‘(1) assist the head of such department, agen7 cy, or element and other officials of such depart8 ment, agency, or element in appropriately consid9 ering privacy and civil liberties concerns when such 

10 officials are proposing, developing, or implementing 

11 laws, regulations, policies, procedures, or guidelines 

12 related to efforts to protect the Nation against ter13 rorism; 

14 ‘‘(2) periodically investigate and review depart15 ment, agency, or element actions, policies, proce16 dures, guidelines, and related laws and their imple17 mentation to ensure that such department, agency, 

18 or element is adequately considering privacy and 

19 civil liberties in its actions; 

20 ‘‘(3) ensure that such department, agency, or 

21 element has adequate procedures to receive, inves22 tigate, respond to, and redress complaints from indi23 viduals who allege such department, agency, or ele24 ment has violated their privacy or civil liberties; and 


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1 ‘‘(4) in providing advice on proposals to retain 

2 or enhance a particular governmental power the offi3 cer shall consider whether such department, agency, 

4 or element has established— 

5 ‘‘(A) that the power actually enhances se6 curity and the need for the power is balanced 

7 with the need to protect privacy and civil lib8 erties; 

9 ‘‘(B) that there is adequate supervision of 

10 the use by such department, agency, or element 

11 of the power to ensure protection of privacy and 

12 civil liberties; and 

13 ‘‘(C) that there are adequate guidelines 

14 and oversight to properly confine its use. 

15 ‘‘(b) EXCEPTION TO DESIGNATION AUTHORITY.— 

16 ‘‘(1) PRIVACY OFFICERS.—In any department, 

17 agency, or element referred to in subsection (a) or 

18 designated by the Board, which has a statutorily 

19 created privacy officer, such officer shall perform the 

20 functions specified in subsection (a) with respect to 

21 privacy. 

22 ‘‘(2) CIVIL LIBERTIES OFFICERS.—In any de23 partment, agency, or element referred to in sub24 section (a) or designated by the Board, which has a 

25 statutorily created civil liberties officer, such officer 


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1 shall perform the functions specified in subsection 

2 (a) with respect to civil liberties. 

3 ‘‘(c) SUPERVISION AND COORDINATION.—Each pri4 vacy officer or civil liberties officer described in subsection 

5 (a) or (b) shall— 

6 ‘‘(1) report directly to the head of the depart7 ment, agency, or element concerned; and 

8 ‘‘(2) coordinate their activities with the Inspec9 tor General of such department, agency, or element 

10 to avoid duplication of effort. 

11 ‘‘(d) AGENCY COOPERATION.—The head of each de12 partment, agency, or element shall ensure that each pri13 vacy officer and civil liberties officer— 

14 ‘‘(1) has the information, material, and re15 sources necessary to fulfill the functions of such offi16 cer; 

17 ‘‘(2) is advised of proposed policy changes; 

18 ‘‘(3) is consulted by decisionmakers; and 

19 ‘‘(4) is given access to material and personnel 

20 the officer determines to be necessary to carry out 

21 the functions of such officer. 

22 ‘‘(e) REPRISAL FOR MAKING COMPLAINT.—No ac23 tion constituting a reprisal, or threat of reprisal, for mak24 ing a complaint or for disclosing information to a privacy 

25 officer or civil liberties officer described in subsection (a) 


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1 or (b), or to the Privacy and Civil Liberties Oversight 

2 Board, that indicates a possible violation of privacy protec3 tions or civil liberties in the administration of the pro4 grams and operations of the Federal Government relating 

5 to efforts to protect the Nation from terrorism shall be 

6 taken by any Federal employee in a position to take such 

7 action, unless the complaint was made or the information 

8 was disclosed with the knowledge that it was false or with 

9 willful disregard for its truth or falsity. 

10 ‘‘(f) PERIODIC REPORTS.— 

11 ‘‘(1) IN GENERAL.—The privacy officers and 

12 civil liberties officers of each department, agency, or 

13 element referred to or described in subsection (a) or 

14 (b) shall periodically, but not less than quarterly, 

15 submit a report on the activities of such officers— 

16 ‘‘(A)(i) to the appropriate committees of 

17 Congress, including the Committees on the Ju18 diciary of the Senate and the House of Rep19 resentatives, the Committee on Homeland Secu20 rity and Governmental Affairs of the Senate, 

21 the Committee on Government Reform of the 

22 House of Representatives, the Select Committee 

23 on Intelligence of the Senate, and the Perma24 nent Select Committee on Intelligence of the 

25 House of Representatives; 


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1 ‘‘(ii) to the head of such department, agen2 cy, or element; and 

3 ‘‘(iii) to the Privacy and Civil Liberties 

4 Oversight Board; and 

5 ‘‘(B) which shall be in unclassified form to 

6 the greatest extent possible, with a classified 

7 annex where necessary. 

8 ‘‘(2) CONTENTS.—Each report submitted under 

9 paragraph (1) shall include information on the dis10 charge of each of the functions of the officer con11 cerned, including— 

12 ‘‘(A) information on the number and types 

13 of reviews undertaken; 

14 ‘‘(B) the type of advice provided and the 

15 response given to such advice; 

16 ‘‘(C) the number and nature of the com17 plaints received by the department, agency, or 

18 element concerned for alleged violations; and 

19 ‘‘(D) a summary of the disposition of such 

20 complaints, the reviews and inquiries conducted, 

21 and the impact of the activities of such officer. 

22 ‘‘(g) INFORMING THE PUBLIC.—Each privacy officer 

23 and civil liberties officer shall— 

24 ‘‘(1) make the reports of such officer, including 

25 reports to Congress, available to the public to the 


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1 greatest extent that is consistent with the protection 

2 of classified information and applicable law; and 

3 ‘‘(2) otherwise inform the public of the activi4 ties of such officer, as appropriate and in a manner 

5 consistent with the protection of classified informa6 tion and applicable law. 

7 ‘‘(h) SAVINGS CLAUSE.—Nothing in this section shall 

8 be construed to limit or otherwise supplant any other au9 thorities or responsibilities provided by law to privacy offi10 cers or civil liberties officers. 

11 ‘‘(i) PROTECTIONS FOR HUMAN RESEARCH SUB12 JECTS.—The Secretary of Homeland Security shall ensure 

13 that the Department of Homeland Security complies with 

14 the protections for human research subjects, as described 

15 in part 46 of title 45, Code of Federal Regulations, or 

16 in equivalent regulations as promulgated by such Sec17 retary, with respect to research that is conducted or sup18 ported by such Department.’’. 

19 SEC. 7. INCLUSION IN PRESIDENT’S BUDGET SUBMISSION 

20 TO CONGRESS. 

21 Section 1105(a) of title 31, United States Code, is 

22 amended by adding at the end the following new para23 graph: 


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1 ‘‘(36) a separate statement of the amount of 

2 appropriations requested for the Privacy and Civil 

3 Liberties Oversight Board.’’. 

Æ 


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