ACLU Letter to the Senate Urging Senators to Reject the the Kyl Amendment (No. 3801) to S. 2845, the Collins-Lieberman bill

Re: S. 2845 — Oppose Kyl Amendment (No. 3801) to Weaken Civil Liberties Board

Dear Senator:

On behalf of the American Civil Liberties Union and its more than 400,000 members, dedicating to preserving constitutional freedoms while protecting the nation, we strongly urge you to vote against an amendment, offered by Senator Kyl, to weaken the civil liberties board established in S. 2845 and to remove altogether the internal watchdogs – privacy officers and civil liberties officers – established within the intelligence agencies.

The Privacy and Civil Liberties Board is an integral part of the 9-11 Commission’s recommendations for reform of the nation’s intelligence community. The Commission found, “”[T]here is no office within the government whose job it is to look across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered.”” (9-11 Commission Final Report, p. 395). The 9-11 Commission specifically recommended establishing a “”board within the executive branch”” as a counterweight to centralizing authority over intelligence in a National Intelligence Director and National Counter-Terrorism Center.

S. 2845 takes the 9-11 Commission’s recommendations for oversight to protect civil liberties seriously, by empowering a strong board to oversee government anti-terrorism efforts. The board is given essential authorities, including the power to hold hearings, examine classified information, issue public reports, and subpoena non-governmental documents and witnesses. These powers are essential for the board to fulfill its functions. The board is also given a mandate, which is specifically laid out in a recommendation of the 9-11 Commission, to examine governmental powers to ensure “”(a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to protect civil liberties.”” (p. 394).

The Kyl amendment would gut these critical authorities. It would remove the provision requiring the board to keep the public informed of its activities, through periodic public hearings and public reports. It takes away the board’s subpoena power over nongovernmental witnesses, which is necessary to ensure the cooperation of contractors and other private actors. The amendment also completely removes the provisions of S. 2845 that create internal watchdogs – privacy and civil liberties officers in the intelligence agencies. Finally, the Kyl amendment specifically rejects the standard of review for government action recommended by the 9-11 Commission, depriving the board of congressional guidance in making its decisions.

Lee Hamilton, Vice Chairman of the 9-11 Commission, testified that a Board without subpoena power would “”be ineffective.”” Commissioners Slade Gorton and Richard Ben-Veniste specifically endorsed the Collins-Lieberman model for a Privacy and Civil Liberties Oversight Board. Likewise, the Family Steering Committee of the Independent 9-11 Commission has endorsed the Collins-Lieberman board and has strongly opposed the Kyl amendment to weaken those protections.

Without these powers, the board will lack the effective authority to provide effective civil liberties oversight the 9-11 Commission recommended. We urge you to oppose the Kyl Amendment.

Sincerely,

Laura W. Murphy
Director, Washington Legislative Office

Timothy H. Edgar
Legislative Counsel