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[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:30391.wais]
S. Hrg. 109-223
[STAR PRINT]
CONFIRMATION HEARING ON THE NOMINATIONS OF CAROL E. DINKINS TO BE
CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD AND ALAN
CHARLES RAUL TO BE VICE CHAIRMAN OF THE PRIVACY AND CIVIL LIBERTIES
OVERSIGHT BOARD
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 8, 2005
__________
Serial No. J-109-48
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
prepared statement........................................... 115
Leahy, Hon. Partrick J., a U.S. Senator from the State of
Vermont, prepared statement.................................... 119
PRESENTER
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas, presenting Carol E. Dinkins, Nominee to be Chairman of
the Privacy and Civil Liberties Oversight Board................ 2
STATEMENTS OF THE NOMINEES
Dinkins, Carol E., of Texas, Nominee to be Chairman of the
Privacy and Civil Liberties Oversight Board.................... 4
Questionnaire................................................ 5
Raul, Alan Charles, of the District of Columbia, Nominee to be
Vice Chairman of the Privacy and Civil Liberties Oversight
Board.......................................................... 52
Questionnaire................................................ 54
QUESTIONS AND ANSWERS
Responses of Carol E. Dinkins to questions submitted by Senators
Durbin, Feingold, and Leahy.................................... 87
Responses of Alan Charles Raul to questions submitted by Senators
Durbin, Feingold, and Leahy.................................... 101
SUBMISSIONS FOR THE RECORD
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, Hon. Susan M. Collins, a U.S. Senator from the State
of Maine, Hon. Joseph L. Lieberman, a U.S. Senator from the
State of Connecticut, and Hon. Patrick J. Leahy, a U.S. Senator
from the State of Vermont, joint letter........................ 117
Washington Post, August 8, 2005, article......................... 122
NOMINATIONS OF CAROL E. DINKINS, OF TEXAS, TO BE CHAIRMAN OF THE
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD AND ALAN CHARLES RAUL, OF
THE DISTRICT OF COLUMBIA, TO BE VICE CHAIRMAN OF THE PRIVACY AND CIVIL
LIBERTIES OVERSIGHT BOARD
----------
TUESDAY, NOVEMBER 8, 2005
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:30 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senator Cornyn.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. The Committee will come to order.
I want to thank Chairman Specter for scheduling today's
hearing. This hearing involves two very important positions
recently created by the Congress. The Privacy & Civil Liberties
Oversight Board was created based upon the recommendations of
the 9/11 Commission, and is designed to oversee our
Government's commitment to defend civil liberties while we do
the work we need to do to find out who it is that is trying to
hurt us. As the Chair and Vice Chair of this Board, both of you
will fill vital positions within the Government. I hope we can
get your nominations voted out of the Committee and through the
Senate so you can get to work as soon as possible.
As a country, we cherish our civil liberties and we are
committed to vigorously defend them, to ensure that we maintain
our way of life. Congress works hard to try to strike the right
balance, a careful and wise balance between national security
and civil liberties. While this is not always easy, nor can we
always claim to have gotten it exactly right, I do believe that
we do so with the best interests of our Nation in mind, and
that we do so in a manner that is both honest and in good
faith.
That is why I am disappointed when we hear what turn out to
be false reports or scare tactics about phantom civil rights
violations. False reports and scare tactics serve no legitimate
purpose, but they do a grave disservice to the American people.
The war on terrorism must be fought aggressively, but
consistent with protection of civil rights and civil liberties.
Whenever real civil liberties problems do arise, we must learn
about them right away so that we can fix them swiftly.
Every false allegation undermines true allegations, and
that hurts us all. If anything, false claims about civil
liberties violations actually make it harder to monitor real
civil liberties issues in the future, for the same reason that
eventually no one listened to the little boy who ``cried
wolf.'' And that is why I encourage honest, responsible and
fair discussions about the war on terrorism, civil liberties
and the USA PATRIOT Act.
The Privacy and Civil Liberties Oversight Board will play
an important role in this debate. Both of you will be expected
to give honest, responsible and fair review of the development
and implementation of laws, regulations and executive branch
policies related to efforts to protect the Nation against
terrorism, and you will also be expected to ensure that
concerns with respect to privacy and civil liberties are
appropriately considered. And I stand ready to work with both
of you, and I know the Committee as a whole does as well.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Well, I see we have the senior Senator from Texas here. I
know she is eager to make an introduction, so let us turn to
Senator Hutchison.
PRESENTATION OF CAROL E. DINKINS, NOMINEE TO BE CHAIRMAN OF THE
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD, BY HON. KAY BAILEY
HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Mr. Chairman. I thank you for
holding this hearing.
I am very pleased to be here with my friend, Carol Dinkins.
Carol has been nominated to chair this Board, the Privacy and
Civil Liberties Oversight Board, and I really cannot think of a
better person for this job.
I have known Carol for a long time. She is a leader, as you
know, Mr. Chairman, in the legal field in Texas. She has worked
with the law firm of Vinson Elkins through most of her career,
and during her tenure there has become a leading expert in the
United States in environmental law. She has represented clients
across various industries, and has handled all aspects of
client counseling from litigation to mediation and standard
business transactions. She served on the firm's Management
Committee and currently chairs the firm's administrative and
environmental law practice.
In 1981, Carol left Vinson Elkins to serve as the Assistant
Attorney General in Charge of the Environmental and Natural
Resources Division in the Department of Justice. In this
position she supervised the Government's litigation in Federal
environmental, natural resources, Indian and public lands
cases. In 1984, she became the Deputy Attorney General of the
United States, the second ranking official in the Department of
Justice. Her responsibilities included day-to-day management of
the Department's 60,000 employees, as well as working with
members of Congress, the White House, the Cabinet, and sub-
Cabinet officers.
Carol Dinkins is a member of the State Bar of Texas, the
Federal Bar Association and the American Bar Association. She
has also served as Chair of the ABA Standing Committee on the
Federal Judiciary. Her active participation in the legal
community has earned her many awards and recognitions,
including being cited as one of the best lawyers in America.
I am proud that she hails from my alma mater, the
University of Texas at Austin, where she earned her bachelor's
degree, and later attended the University of Houston for her
JD.
I know that her experience in both the public and private
sectors have prepared her to serve as the first Chair of the
Privacy and Civil Liberties Oversight Board, and I am very
pleased that she has been willing to accept this nomination.
And, Mr. Chairman, I know that your holding this hearing
means that you also have an interest in expediting these
confirmations so that we can get the Board set up and ready to
go.
Thank you.
Senator Cornyn. Thank you very much, Senator Hutchison. I
know you have other commitments, and I have already told our
two nominees that we have stacked votes here in just a few
minutes, we will soldier on the best we can. But thank you for
being here and introducing Ms. Dinkins.
Since I have had the honor of also knowing Carol Dinkins
for a number of years too, I will not repeat all the nice
things that Senator Hutchison said, but just put me down as
ditto for all those compliments, and I agree the President has
chosen wisely as the Chair of this Board.
Our other nominee is Alan Raul, who is the President's
nominee to serve as Vice Chair of the Privacy and Civil
Liberties Oversight Board. He is a partner in the prestigious
Washington, D.C. law firm of Sidley, Austin, Brown and Wood,
and he too brings significant public sector and private sector
experience to this job.
Mr. Raul's previously served at the White House as
Associate Counsel to President Reagan. He has also served as
General Counsel of the Office of Management and Budget, and as
General Counsel to the U.S. Department of Agriculture. Mr.
Raul, I am confident your past Government service will serve
you well in this new position as well.
I welcome both of you here.
As I told Ms. Dinkins yesterday when she was in my office,
just catching up after not seeing each other for a while, we
had a chance for some informal conversation. I will tell you,
Mr. Raul, what I told her yesterday. I said the fact that we do
not have a packed audience here or packed members of the Senate
Judiciary Committee here does not mean that they are not
listening and not interested, because certainly they are and
certainly their staff is here. But these days, given the
contentious nature of some of our fights here on the Judiciary
Committee in particular, the fact that this is not a packed
dais up here is not a bad thing. It is probably a good thing.
I am hopeful that we will be able to, as Senator Hutchison
and I have already said, move promptly on these nominations.
At this time I would like to turn now to Ms. Dinkins, and
any opening remarks you would care to make, we would be glad to
hear.
STATEMENT OF CAROL E. DINKINS, NOMINEE TO BE CHAIRMAN OF THE
PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
Ms. Dinkins. Thank you, Mr. Chairman. I appreciate your
kind words and those of Senator Hutchison as well. It is a
great pleasure to be here today, and a privilege to be
nominated by the President to Chair the Privacy and Civil
Liberties Oversight Board, and if confirmed, I will be
privileged to serve with Alan Raul, and Ted Olsen, Lanny Davis
and Frank Taylor, all of whom are men of great distinction and
of very considerable achievement and experience.
Having served as Assistant Attorney General for the Office
of Legal Counsel, and more recently as Solicitor General of the
United States, Mr. Olsen is well known to this Committee. I was
fortunate to serve as an Assistant Attorney General when he was
the head of the Office of Legal Counsel at the Department of
Justice, and I sought his advice and counsel on a number of
difficult matters. From that experience, I know that he is
careful, measured and thoughtful, and he is thorough in his
legal analysis. He is an independent thinker, and he is
squarely grounded in the law.
Mr. Chairman, I would like to present Lanny Davis, who is
behind me.
[Mr. Davis stood.]
Ms. Dinkins. Thank you, Lanny.
Lanny has a great depth of experience as Special Counsel to
President Clinton, and that will be invaluable to the Board,
which is housed within the Executive Office of the President.
The other member, Frank Taylor, who is here also, was a
long-time career Air Force officer in the area of security,
before he was Secretary of State, as Counterterrorism
Coordinator, and he is now head of security at General
Electric.
The breadth of this collective experience will assure that
this Board is well suited to carry out the functions and the
great responsibility that has been assigned it. We see that it
will be a particular challenge to have the opportunity to be
the first members of this Board, and if Alan and I area
confirmed, to be the first Chair and Vice Chair. We will be
shaping the organization of the Board and working with its
members to develop and carry out the initial agenda.
If confirmed, my first priority as Chair, with Mr. Raul's
very able assistance, will be to engage an Executive Director
and to do what is necessary to get the Board up and running. We
will convene as soon as possible to develop our agenda and set
priorities, and an integral part of that agenda will be to
reach out to those who are interested in this Board and its
activities.
We would welcome the opportunity, if confirmed, to meet
with members of Congress who may wish to share their views on
the role and activities of the Board, and we look forward to
reporting at least annually to the Congress on our major
activities.
Thank you.
[The biographical information of Ms. Dinkins follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Cornyn. Thank you, Ms. Dinkins, and thank you for
introducing the other members of the Board who are here with
us, and welcome.
Mr. Raul, we will now turn to you for any opening comments
you would like to make.
STATEMENT OF ALAN CHARLES RAUL, NOMINEE TO BE VICE CHAIRMAN OF
THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD
Mr. Raul. Mr. Chairman, thank you for your kind
introduction earlier.
It is a great honor and responsibility to appear before
this Committee as President George W. Bush's nominee to serve
as Vice Chairman of the Privacy and Civil Liberties Oversight
Board. I am humbled and inspired that the President has asked
me to help our Nation maintain its constitutional soul in the
process of defending itself and ultimately vanquishing enemies
who have sworn to do us brutal harm. This mission is surely one
of the most important and challenging roles a lawyer in our
country could be asked to undertake.
If I am confirmed it will be a special privilege to embark
upon this initiative with such distinguished, experienced and
independent-minded colleagues as Carol Dinkins, Ted Olsen,
Lanny Davis and Frank Taylor. My prospective fellow Board
members are as talented and patriotic as any group with whom
one could hope to work. I look forward to sharing
responsibilities, efforts and objectives with them.
I am under no illusion that we can or should please
everyone with the work of the Board. As embodied in the statute
establishing the Privacy and Civil Liberties Oversight Board,
our advisory and oversight obligations reflect a certain
tension between protecting the precious liberties that are
vital to our way of life, and acknowledging the additional
powers the Federal Government may need to conduct the war on
terrorism.
While I recognize that we may not please all sides all the
time, I am certain that I and the other members of the Board
will discharge our specified legal duties honestly and
conscientiously. Specifically, we will be dedicated to ensuring
that privacy and civil liberties implications and concerns are
identified, understood, communicated, and appropriately
considered as the executive branch develops and implements
policies and practices to fight the war against terrorism.
To that end, if confirmed, I will make the personal
commitment to assure that the views of the Privacy and Civil
Liberties Oversight Board are informed and credited within the
executive branch, and useful to the President and the relevant
department and agency heads. We will also report candidly to
Congress, as required by law, and consult meaningfully with
civil libertarians and other patriots inside and outside of
Government, who are interested in sharing their views,
suggestions and concerns with us.
In the first and final analysis, if confirmed, I, and the
other members of the Board I am sure, will be governed by the
opening text in our great Constitution, where the people
established our noble system of Government to, quote, ``ensure
domestic tranquility, provide for the common defense,'' and
most germane for our Board, ``secure the blessings of liberty
to ourselves and our posterity.''
Thank you for honoring me with your consideration of my
nomination.
[The biographical information of Mr. Raul follows.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Senator Cornyn. Thank you, Mr. Raul, and thanks to you, Ms.
Dinkins, for both bringing members of your family here with
you. This is, I know, a proud moment for them as well.
Let me ask you, please, to stand so I can administer the
oath to both of you.
Do you swear that in your testimony before the Committee,
you will tell the truth, the whole truth and nothing but the
truth, so help you God?
Mr. Raul. I do.
Ms. Dinkins. I do.
Senator Cornyn. Thank you. Please have a seat.
I guess one of the big challenges that this Board has is
being a new board and being really not a lot of guidance, I
guess, for exactly how you are supposed to carry out your
functions. I would be interested in hearing from each of you
how you intend to proceed, if only maybe in general terms right
now, if you are confirmed to this position. How do you see
getting started, Ms. Dinkins?
Ms. Dinkins. Thank you, Mr. Chairman. It will be quite a
challenge given that the Board does not currently exist and it
is brand new. As I said earlier, our first order of business
will be to engage an Executive Director. We will then evaluate
what other types of people we might need to staff the
functioning of the Board, and seek additional resources from
the various departments through detailees, for example.
Once we have an Executive Director and office space, to
speak very practically, then the Board will begin to identify
who we would want to reach out to and speak with about what
their views are regarding the things that the Board should be
looking at and delving into. And we will use that to guide us
in setting our agenda, and more importantly, within the agenda,
to set priorities.
That's very general, but other than that, we'll be guided
by what is in our statutory mandate.
Senator Cornyn. Mr. Raul, do you have any other thoughts?
Mr. Raul. Well, I agree with Ms. Dinkins that we will seek
to reach out and be educated by the views of the people, both
inside and outside the Government, the Executive Branch and in
the Congress, to learn from people who have been following this
issue and very concerned about it for a long time. So we'd like
to hear from people who are interested in sharing their
thoughts with us. Obviously, we'll convene as a Board, the five
of us, to determine initial priorities and so on, but as Ms.
Dinkins indicated, finding an Executive Director, getting the
logistics of getting an organization in place will be, will
have to be a top priority.
Senator Cornyn. As I said, the statute is not really
expansive about exactly how you are supposed to function, but
it does say that the role of the Board is to advise counsel and
oversee the Executive Department's development and
implementation of policy, including reviewing proposed
regulations and executive branch policies in the area of
terrorism prevention and so forth, reviewing the implementation
of laws, regulations and executive branch policies related to
terrorism prevention, including the implementation of
information-sharing guidelines under Sections (d) and (f) of
Section 1016 of the National Intelligence Reform Act, and then
to advise the President and department and agency heads, to
ensure that privacy and civil liberties are appropriately
considered in the development and implementation of such
regulations and Executive Branch policies.
It is my impression that some people feel that this is a
zero-sum game, Ms. Dinkins, between national security and
terrorism prevention on one hand, and civil liberties and
privacy rights on another. How do you see it?
Ms. Dinkins. Both of those are of fundamental importance to
our way of life and to our future. We must protect the country
from those who would destroy us and destroy our people and our
culture, but on the other hand, we can't give up or give short
shrift to what makes this such a special Nation, and we must
protect our privacy and our civil liberties.
And these are things that require careful balancing, things
that require a great deal of back and forth to make sure that
the tension is properly resolved so that we do not sacrifice
our civil liberties while we are fighting those who wish to
destroy us. I don't think that it's an easy tension, but it's
one that we must grapple with and we must come out on the right
side of it.
Senator Cornyn. I know as we have debated the PATRIOT Act--
I was not here when that was passed and signed by the
President, but I have been here during the debate since that
time, and aware of the fact that the PATRIOT Act has been
condemned, I guess, by the resolution of, I think, over 300
different municipal governments. Now, it is a matter of
curiosity to me why city councils and mayors would be passing
resolutions condemning the PATRIOT Act, particularly in light
of the fact that it has been so important, particularly in
terms of information sharing, in terms of making sure that our
intelligence and law enforcement authorities have the tools
they need in order to root out terrorist activity, and to keep
us safe.
I say that just because it has always struck me that this
is an area where there is a lot of misinformation, you might
even say disinformation, and perhaps the best thing you could
say is it is an area where people just do not know s much as
they probably would need to know in order to make good
decisions about this balance.
I am curious, Mr. Raul, do you happen to know, will the
Board be privy to classified information and be given an
opportunity, in evaluating privacy and civil liberty concerns,
to be able to weight that in the balance with concerns about
threats?
Mr. Raul. Yes, Mr. Chairman. The statute establishing the
Board is very clear that the members of the Board are to be
provided with security clearances, specifically for the purpose
of allowing us, if confirmed, to have information that will let
us balance these issues in an informed way. We need to have,
and I believe the statute contemplates that we will have,
access to information so that we can advise the President,
department heads and agency heads, and make our report to
Congress. And the statute says ``in an unclassified fashion to
the greatest extent possible,'' thereby contemplating that
portions of it might remain classified.
But I believe that it was the intention in establishing the
Board that we would have the clearances that are necessary and
commensurate with the type of information that we will need to
balance the issues between fighting the war on terrorism while
ensuring that civil liberties concerns are considered as we do
that.
Senator Cornyn. I think that is very important, because as
our own history shows us, the more people feel threatened by
whether it is terrorism or by enemies of this country, the more
perhaps we are willing to accept in terms of loss of privacy
rights. I think people do have to strike a balance, and that
will be important information for you to have, I think, as you
go through this job, and as you review these rules and
regulations, and as you advise the President and other
agencies.
I also think you could perform an important role for the
President by, as you said, by reaching out to various
organizations that do have concerns in these areas, and I think
part of that is going to be not only listening to their
concerns, but perhaps helping them to understand what the facts
are because this is an area that can be very emotional, and
sometimes disputes can be resolved by pointing out the facts or
correcting misimpressions or misapprehensions about exactly
what Congress and the Federal Government is about.
I know you will not be too surprised that I do not have a
lot more for you, and actually it may turn out to be fortuitous
that we do have votes now, but I think at this point what I
will do is we are going to leave the record open so that any
member of the Committee can ask any additional questions they
may have of you in writing, and we will leave that record open
until 5 p.m. on Tuesday, November the 15th, for that purpose.
What we are going to do, after a little consultation with
staff here, we are going to recess the hearing, and we have two
votes so it may be a few minutes, maybe 30 minutes or so, and
then we will come back.
I am actually through with the questions I had of you, but
Senator Feingold, I understand, will be coming, and either he
will reconvene the hearing and ask those questions, or I will
be back for that purpose.
But thank you for being understanding about our crazy
schedule around here. Thank you for your willingness to serve.
We will recess the hearing at this time.
[Recess from 2:56 p.m. until 3:32 p.m.]
Senator Cornyn. One thing I neglected to do is to give you
each a chance to introduce your family members that are here
with you. I had a chance to meet them informally, but, Ms.
Dinkins, would you care to introduce your family for the
record?
Ms. Dinkins. Yes, thank you so much. Mr. Chairman, may I
please present my husband, Bob Brown.
Senator Cornyn. Congratulations, nice to see you.
Mr. Raul, I know you have several members of your family
here with you.
Mr. Raul. Yes, I have a nice cohort here. Thank you, Mr.
Chairman.
I have my wife, Mary Tinsley Raul, and my daughter
Caroline, my son, William, and my son, Alexander, and I also
have my sister-in-law, Sarah Tinsley Demarest.
Senator Cornyn. That is great. Well, welcome to all of you,
and thank you for being here and being so supportive of your
spouse, and father and brother, excuse me.
Senator Feingold had said he wanted to come over and ask a
few questions, but unfortunately, he is otherwise committed, so
he is going to submit those questions in writing, like other
members of the Committee. There may be additional questions
that you will be asked to answer. Those will be submitted no
later than 5 o'clock, next Tuesday.
With that, the hearing is adjourned.
[Whereupon, at 3:33 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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