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Privacy and civil liberties: Where's the watchdog?

By Alan Charles Raul
Friday, October 23, 2009

Assuming the executive branch is still fighting terrorists as fiercely as necessary to protect Americans, the need for oversight on privacy and civil liberties remains as vital as it was immediately after the Sept. 11 attacks. Nonetheless, President Obama and Congress appear to have dropped the ball.

In December 2004, Congress implemented many recommendations of the Sept. 11 commission, which acknowledged that effectively combating terrorism "call[ed] for the government to increase its presence in our lives -- for example, by creating standards for . . . identification, by better securing our borders, by sharing information gathered by many different agencies." The panel recommended a Privacy and Civil Liberties Oversight Board "to oversee . . . the commitment the government makes to defend our civil liberties" by advising the president and Cabinet.

Just six months after the legislation was enacted, President Bush announced his plans to nominate former deputy attorney general Carol Dinkins as chairman and me as vice chairman, and to appoint as board members former solicitor general Ted Olson, former assistant secretary of state Frank Taylor and former Clinton White House special counsel Lanny Davis. After the Senate confirmed Dinkins and myself in February 2006, the board was staffed and fully operational the next month. Yet the administration was accused of undue delay in getting the board up and running. Rep. Carolyn B. Maloney (D-N.Y.) repeatedly made comments such as "they have stalled in giving the board adequate funding. They have stalled in making appointments. It is apparent they are not taking this seriously."

The board met many times in person and by telephone conference. We held numerous private sessions with the president's national security and homeland security advisers, the attorney general, the FBI director and many other officials on the front line of the war against terrorism. At President Bush's personal direction, the board was fully briefed on the most closely held program involving terrorist surveillance. It was also provided full access regarding the FBI's appalling misuse of its authority to obtain information through "national security letters." At the attorney general's request, the board investigated and reported its highly critical conclusions on the scandal to the attorney general and the White House counsel.

Unfortunately, in January 2007, the new congressional leadership decided to "reform" the board by reconstituting it as an independent agency, relocated outside the White House. Lawmakers thought the board needed subpoena power to provide its advice and that each member, not just the chairman and vice chairman, should be subject to Senate confirmation. These "reforms" rendered the board a lame duck, and the members and staff who had been painstakingly vetted and briefed were allowed to serve only six more months.

President Bush nominated new members to continue operations under the revised mandate, but the Senate did not even hold hearings on these nominations or on the work of the board generally. Since Jan. 30, 2008, the oversight board that the Sept. 11 commission thought so essential to safeguarding U.S. national interests has lapsed.

While Congress has not pressed President Obama on this, his White House "Cyberspace Policy Review" recognized in May that "[i]t is important to reconstitute the [board] . . . accelerate the selection process for its board members, and consider whether to seek legislative amendments to broaden its scope to include cybersecurity-related issues." Still, the president has not nominated a chairman or members, set aside space, or publicly moved to revitalize oversight of privacy and civil liberties in the fight against terrorism.

The law requires that the board be operational, and prudence suggests that this administration, like the last, could use the oversight. Surely the administration is debating and executing many "close calls" to protect American lives and interests. Surely the president is still authorizing surveillance of possible terrorists who are in this country (like, allegedly, Najibullah Zazi) or their domestic associates; the FBI is still demanding information from businesses about suspicious activity; the National Security Agency must consider data-mining communications and monitoring the Internet; the Treasury is still tracing terrorist finances; the Department of Homeland Security is still searching backgrounds, bodies and laptops at our borders and using domestic satellite imagery to anticipate threats; and more.

Accordingly, the president should nominate forthwith a distinguished, bipartisan slate of members to reinvigorate the board. The chairman, who must serve full time, should be a former senior government official with substantial credibility within and outside the administration. The president should insist that the intelligence community, the departments of Justice and Homeland Security, and other agencies offer dedicated, talented staffers to serve as "detailees" for the board.

It is critical that the president make clear that while the board is "independent" of his White House, he personally embraces it. An executive branch agency charged with advising and overseeing the intelligence community must have full access well before counterterrorism initiatives are operational. Those in the president's inner circle and running the intelligence agencies understandably hold things close. An "independent" board will risk being outside the loop, informed only after the fact, when it is no longer possible to influence decisions -- and only the president's specific backing can avert this danger.

The president should affirm that he wants and expects to receive the board's advice in advance of setting counterterrorism policies, and its meaningful oversight afterward.

The lapse of the Privacy and Civil Liberties Oversight Board has been unacceptable. Its work remains vital regardless of what administration is in power.

The writer, a lawyer in Washington, was vice chairman of the Privacy and Civil Liberties Oversight Board from 2006 to 2008.

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