The missing Privacy and Civil Liberties Oversight Board

Sunday, January 24, 2010

The Jan. 19 front-page article "FBI broke law for years in phone record searches" missed a key part of the story. The lack of meaningful, sustained attention to these matters by Washington policymakers -- as opposed to episodic political interest -- is a scandal unto itself.

In 2007, the Justice Department's inspector general revealed the FBI's failure to comply with the statutory and procedural requirements on which its powerful national security letter (NSL) authority was conditioned. After the IG report, the White House Privacy and Civil Liberties Oversight Board further investigated the FBI's abuse of power and reported its conclusions to the attorney general and White House counsel. In the board's January 2008 report to Congress -- two years ago! -- we stated:

"[T]he Board is concerned that the FBI has not made a conscious, direct, and thorough effort to explain to the public and to Congress exactly why NSLs should be retained in their current form. . . . The Board welcomes the FBI's decision to [eliminate] the use of 'exigent' letters. . . . Finally, the Board believes senior officials in the FBI bear responsibility for failing to create any sort of compliance mechanism prior to the Report and failing to craft procedures to allow information regarding NSL violations to flow to those in authority."

What happened next? There was no apparent accountability for the FBI's lack of legal compliance, and Congress decided instead to move the administrative deck chairs around by enacting legislation to phase out the Privacy and Civil Liberties Oversight Board (which had only just been created in 2004 legislation), and transform it into an independent agency outside the White House. The Senate then failed to confirm President Bush's nominees for the reconstituted board, and President Obama has not nominated anyone at all.

The American people are counting on the government to go after terrorists hard, and this means it must be equally serious about protecting our privacy and civil liberties. Right now it is not clear that these responsibilities are being discharged seriously.

Alan Charles Raul, Washington

The writer served as vice chairman of the Privacy and Civil Liberties Oversight Board from 2006 to 2008.

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