PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.

SEC. 1061. PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD.(a) Findings.—Consistent with the report of the National Commission on Terrorist Attacks Upon the United States, Congress makes the following findings:(1) In conducting the war on terrorism, the Federal Government may need additional powers and may need to enhance the use of its existing powers. (2) This potential shift of power and authority to the Federal Government calls for an enhanced system of checks and balances to protect the precious liberties that are vital to our way of life.(b) Establishment of Board.—There is established within the Executive Office of the President a Privacy and Civil Liberties Oversight Board (referred to in this section as the “Board”). (c) Functions.—(1) Advice and counsel on development and implementation of policy.—For the purpose of providing advice to the President or to the head of any department or agency of the executive branch, the Board shall—(A) review proposed regulations and executive branch policies related to efforts to protect the Nation from terrorism, including the development and adoption of information sharing guidelines under subsections (d) and (f) of section 1016;(B) review the implementation of laws, regulations, and executive branch policies related to efforts to protect the Nation from terrorism, including the implementation 118 STAT. 3685 of information sharing guidelines under subsections (d) and (f) of section 1016;(C) advise the President and the head of any department or agency of the executive branch to ensure that privacy and civil liberties are appropriately considered in the development and implementation of such regulations and executive branch policies; and(D) in providing advice on proposals to retain or enhance a particular governmental power, consider whether the department, agency, or element of the executive branch concerned has explained—(i) that there is adequate supervision of the use by the executive branch of the power to ensure protection of privacy and civil liberties;(ii) that there are adequate guidelines and oversight to properly confine the use of the power; and(iii) that the need for the power, including the risk presented to the national security if the Federal Government does not take certain actions, is balanced with the need to protect privacy and civil liberties.(2) Oversight.—The Board shall continually review—(A) regulations, executive branch policies, and procedures (including the implementation of such regulations, policies, and procedures), related laws pertaining to efforts to protect the Nation from terrorism, and other actions by the executive branch related to efforts to protect the Nation from terrorism to ensure that privacy and civil liberties are protected; and(B) the information sharing practices of the departments, agencies, and elements of the executive branch to determine whether or not such practices appropriately protect privacy and civil liberties and adhere to the information sharing guidelines under subsections (d) and (f) of section 1016 and to other applicable laws, regulations, and executive branch policies regarding the protection of privacy and civil liberties.(3) Scope.—The Board shall ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism.(4) Reports to congress.—Not less frequently than annually, the Board shall prepare a report to Congress, unclassified to the greatest extent possible (with a classified annex, if necessary), on the Board’s major activities during the preceding period.(d) Access to Information.—(1) Authorization.—If determined by the Board to be necessary to carry out its responsibilities under this section, the Board is authorized, to the extent permitted by law, to—(A) have access from any department or agency of the executive branch, or any Federal officer or employee of any such department or agency, to all relevant records, reports, audits, reviews, documents, papers, recommendations, or other relevant material, including classified information consistent with applicable law;118 STAT. 3686(B) interview or take statements from officers of any department or agency of the executive branch;(C) request information or assistance from any State, tribal, or local government; and(D)(i) request that persons (other than departments, agencies, and elements of the executive branch) produce for the Board relevant information, documents, reports, answers, records, accounts, papers, and other documentary and testimonial evidence; and(ii) if the person to whom such a request is directed does not comply with the request within 45 days of receipt of such request, notify the Attorney General of such person’s failure to comply with such request, which notice shall include all relevant information.(2) Production of information and evidence.—(A) Explanation of noncompliance.—Upon receiving notification under paragraph (1)(D)(ii) regarding a request, the Attorney General shall provide an opportunity for the person subject to the request to explain the reasons for not complying with the request.(B) Action by attorney general.—Upon receiving notification under paragraph (1)(D)(ii) regarding a request, the Attorney General shall review the request and may take such steps as appropriate to ensure compliance with the request for the information, documents, reports, answers, records, accounts, papers, and other documentary and testimonial evidence covered by the request.(3) Agency cooperation.—Whenever information or assistance requested under subparagraph (A) or (B) of paragraph (1) is, in the judgment of the Board, unreasonably refused or not provided, the Board shall report the circumstances to the head of the department or agency concerned without delay. If the requested information or assistance may be provided to the Board in accordance with applicable law, the head of the department or agency concerned shall ensure compliance with such request.(4) Exceptions for national security.—(A) In general.—If the National Intelligence Director, in consultation with the Attorney General, determines that it is necessary to withhold information requested under paragraph (3) to protect the national security interests of the United States, the head of the department or agency concerned shall not furnish such information to the Board.(B) Certain information.—If the Attorney General determines that it is necessary to withhold information requested under paragraph (3) from disclosure to protect sensitive law enforcement or counterterrorism information or ongoing operations, the head of the department or agency concerned shall not furnish such information to the Board.(e) Membership.—(1) Members.—(A) In general.—The Board shall be composed of a chairman, a vice chairman, and three additional members appointed by the President.(B) Chairman and vice chairman.—The chairman and vice chairman shall each be appointed by the President, by and with the advice and consent of the Senate.118 STAT. 3687(C) Appointment requirements.—Any individual appointed to the Board shall be appointed from among trustworthy and distinguished citizens outside the Federal Government who are qualified on the basis of achievement, experience, and independence.(D) Full-time service of chairman.—The chairman may serve on a full-time basis.(E) Service at pleasure of president.—The chairman, vice chairman, and other members of the Board shall each serve at the pleasure of the President.(2) Incompatible office.—An individual appointed to the Board may not, while serving on the Board, be an elected official, officer, or employee of the Federal Government, other than in the capacity as a member of the Board.(3) Quorum and meetings.—The Board shall meet upon the call of the chairman or a majority of its members. Three members of the Board shall constitute a quorum.(f) Compensation and Travel Expenses.—(1) Compensation.—(A) Chairman on full-time basis.—If the chairman serves on a full-time basis, the rate of pay for the chairman shall be the annual rate of basic pay in effect for a position at level III of the Executive Schedule under section 5314 of title 5, United States Code.(B) Chairman and vice chairman on part-time basis.—The chairman, if serving on a part-time basis, and the vice chairman shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay in effect for a position at level III of the Executive Schedule under section 5314 of title 5, United States Code, for each day during which such official is engaged in the actual performance of the duties of the Board.(C) Members.—Each member of the Board shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay in effect for a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day during which that member is engaged in the actual performance of the duties of the Board.(2) Travel expenses.—Members of the Board shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for persons employed intermittently by the Federal Government under section 5703(b) of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Board.(g) Staff.—(1) Appointment and compensation.—The chairman, in accordance with rules agreed upon by the Board, shall appoint and fix the compensation of an executive director and such other personnel as may be necessary to enable the Board to carry out its functions, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that no rate of pay fixed under this subsection may exceed the equivalent of that payable for a position at level V of the 118 STAT. 3688 Executive Schedule under section 5316 of title 5, United States Code.(2) Detailees.—Federal employees may be detailed to the Board without reimbursement from the Board, and such detailee shall retain the rights, status, and privileges of the detailee’s regular employment without interruption.(3) Consultant services.—The Board may procure the temporary or intermittent services of experts and consultants in accordance with section 3109 of title 5, United States Code, at rates that do not exceed the daily rate paid a person occupying a position at level IV of the Executive Schedule under section 5315 of such title.(h) Security Clearances.—The appropriate departments and agencies of the executive branch shall cooperate with the Board to expeditiously provide Board members and staff with appropriate security clearances to the extent possible under applicable procedures and requirements. Promptly upon commencing its work, the Board shall adopt, after consultation with the Secretary of Defense, the Attorney General, and the National Intelligence Director, rules and procedures of the Board for physical, communications, computer, document, personnel, and other security in relation to the work of the Board.(i) Applicability of Certain Laws.—(1) Federal advisory committee act.—The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply with respect to the Board and its activities. (2) Freedom of information act.—For purposes of the Freedom of Information Act, the Board shall be treated as an agency (as that term is defined in section 551(1) of title 5, United States Code).(j) Construction.—Except as otherwise provided in this section, nothing in this section shall be construed to require any consultation with the Board by any department or agency of the executive branch or any Federal officer or employee, or any waiting period that must be observed by any department or agency of the executive branch or any Federal officer or employee, before developing, proposing, or implementing any legislation, law, regulation, policy, or guideline related to efforts to protect the Nation from terrorism.(k) Presidential Responsibility.—The Board shall perform its functions within the executive branch and under the general supervision of the President.(l) Authorization of Appropriations.—There are authorized to be appropriated such sums as may be necessary to carry out this section.