On Friday, in the wake of revelations about the National Security Agency’s secret operations, Bloomberg’s Al Hunt asked if there should be a White House Office of Civil Liberties to serve as a check on the government’s surveillance power. Sen. Joe Manchin (D-W.V.) said such an office might be a good idea.
In fact, a civil liberties board was created back in 2004. But it’s never been truly functional. What happened?
Recommended by the 9/11 Commission, the Privacy and Civil Liberties Oversight Board began life as an agency within the Executive Office of the President. The concept: a bipartisan, civilian group that would advise and report on the administration’s protection of privacy and civil liberties.
After delays in nominating and confirming the five members (a running theme in the PCLOB’s history) the board finally met in early 2006. But the underfunded board was criticized from the get-go as little more than an appendage of the presidency. Its first report to Congress was heavily edited by administration officials, inspiring Democrat Lanny Davis to quit in protest.
In response, Congress passed legislation in 2007 transforming the PCLOB into an independent agency. It also expanded the board’s mandate to reviewing the actions of Congress as well as the White House and gained subpoena power.
And then… nothing happened. President Bush nominated three board members in early 2008. Congressional Democrats proposed two names; Bush accepted only one, and in retaliation the Senate refused to move on any of Bush’s nominees.
President Obama came into office and fared no better. He didn’t nominate a full slate to the board until December 2011. “We did not expect it to be the first set of nominations he made… but we were very disappointed that it took as long as it did to get those nominations,” said Sharon Bradford Franklin, senior counsel at the Constitution Project, a legal watchdog. Then Obama’s nominee for chairman, David Medine, was held up by Republicans in the Senate for over a year. Among other things, Sen. Lindsey Graham (R-S.C.) faulted Medine for refusing to say whether or not the country is engaged in a “war on terrorism.”
Without a chairman, the board couldn’t hire staff and had no full-time members. Medine was finally confirmed last month, and he’s still putting the wheels in motion; the board doesn’t even have a website yet. Now, at last, the board might actually function as the commission intended.
“It’s too soon to figure out or to know how that body is going to work and when it will be effective,” said Michelle Richardson, a legislative counsel for the ACLU. At a public hearing, the board said it planned to focus on FISA and cybersecurity.
In the wake of last week’s revelations, Medine has asked National Intelligence Director James Clapper for a classified briefing “as soon as possible” on the surveillance programs collecting phone and email records. Not bad for a board almost no one knows exists.