Bush's privacy watchdogs make public debut

(continued from previous page)

Some members of Congress have proposed legislation that would beef up the board's powers. But at least one board member downplayed those concerns Tuesday.

"We have had access to anyone we've wanted to have (it) to," said board member Theodore "Ted" Olson, a partner at the firm Gibson, Dunn & Crutcher who focuses on appellate and constitutional law. "We have asked any questions we wanted to ask, to date, and they have been answered."

Suggestions and criticisms
The public meeting included no shortage of familiar suggestions from outside panelists--namely, that they believed the president's warrantless-wiretapping program is operating outside of the law and the U.S. Constitution, and must be reined in. But the afternoon brought a relative dearth of specific commitments on that front from the board members.

"Our chief burden as a board is to find the right balance between my own and, I believe, my colleagues' commitment to civil liberties and privacy rights while still giving the government the ability to protect our country, our children and all of us from these forces of evil we all experienced on 9/11," said board member Lanny Davis, a former White House counsel under President Clinton and now a partner at the law firm Orrick in Washington.

During his testimony, Electronic Privacy Information Center Director Marc Rotenberg said he would be interested to hear whether the board agrees with the president's assertion that he has inherent authority to run the surveillance program without a court order. When fellow panelist Michael Ostrolenk of the Liberty Coalition, a civil-liberties activist group, pressed the board members on whether they planned to answer that question, four of the board members remained mum.

Davis, the sole member to speak up, said he would prefer that "we go back to the conservative tradition of checks and balances," but he seemed to suggest that it was more Congress' duty than his own to curb the executive branch's power.

During a question-and-answer session, one audience member asked the board if it could reveal whether it had been briefed on how many Americans have had their phone records or Internet and phone communications monitored by the NSA.

"All that would be appropriate to say is that we did receive a detailed briefing with information of the kind you described," responded Vice Chairman Alan Raul, who served as a White House lawyer during the Reagan administration and is now a partner with a wide-ranging focus at the firm Sidley Austin in Washington.

The audience member pressed the board member further, asking whether the board planned to recommend that such information be made public, just as the government is expected to disclose how many court-ordered wiretaps it completes each year, but Raul deferred again.

"I can't address the substance of the question," he said, adding, "Part of our ability to provide advice within the executive branch is the ability to provide advice confidentially and...to share some private views we have, I think, would undermine our (work)."

Raul's seemingly vague responses all go back to the manner in which Congress designed the board, fellow board member Davis said. "We didn't put ourselves in the office of the president," he said. "If Congress wanted us to be an independent agency, they would've created us as an independent agency."

How the board is supposed to reconcile its oversight duties under that umbrella, Davis added, remains "an open question that none of us up here have quite been able to figure out."