Lawmakers, advocates push administration for appointments to privacy board

Rep. Jane Harman (D-Calif.)
Rep. Jane Harman (D-Calif.) (Lauren Victoria Burke - AP)
By Ellen Nakashima
Washington Post Staff Writer
Friday, April 9, 2010

Lawmakers and privacy advocates are stepping up the pressure on the Obama administration to fill the five vacant seats on the Privacy and Civil Liberties Oversight Board, a panel created in 2004 to ensure that executive branch counterterrorism policies protect Americans' civil liberties.

The board has been vacant since the end of the last administration, which is troubling, lawmakers say, given what intelligence officials say is the growing danger posed by homegrown terrorists.

"It's important, especially as we ramp up on domestic intelligence issues, that we have an independent watchdog" focused on privacy and civil liberties, Rep. Jane Harman (D-Calif.), of the House Homeland Security Committee, said at a conference on intelligence reform this week.

The White House is vetting someone for one of the three Democratic seats on the board, according to an administration official who said he could not be identified in discussing the vetting process. One of the barriers to finding a chairman is the statutory requirement that the official work full time, he said. "So that makes it a taller order," he said. The four other positions are part time.

"We've connected with the Republicans on the Hill, and they will have names to us in two weeks," he said. "The wheels are turning, but we don't have names of nominees to share at this point."

The attempted bombing of a passenger jet on Christmas and the shooting at Fort Hood, Tex., last fall have underscored the domestic threat, and the former has led the administration to introduce screening technologies and watch-listing procedures.

The board, said Greg Nojeim, senior counsel of the Center for Democracy and Technology, could be advising on those efforts. "Watch-listing and data mining, airport screening and passenger searching, 'over-collection' of Americans' communications by the National Security Agency, fusion centers and cybersecurity measures that threaten privacy -- it's a target-rich environment," he said. "The president needs the privacy board."

President Obama is feeling the heat from his own party. Last month, a group of 22 key Democratic Congress members urged him to act. "It is imperative that the board be fully operational to evaluate and advise the executive branch on the privacy and civil liberties implications associated with such changes," the group said in a letter, whose signatories included Homeland Security Committee Chairman Bennie Thompson, Intelligence Committee Chairman Silvestre Reyes (D-Tex.) and Rush D. Holt (D-N.J.), chairman of the Select Intelligence Oversight Panel.

The letter follows a missive sent in January by Thompson and Harman, and one sent last year by Harman and Sen. Susan Collins (R-Maine). Last month, Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) also urged prompt action. And a coalition of privacy and civil liberties groups have fired off two letters in the past six months to Obama expressing growing concern over the dormant board.

"The president's committed to constituting the Privacy and Civil Liberties Oversight Board and will do so soon," White House spokesman Ben LaBolt said.

The board was authorized by the Intelligence Reform and Terrorism Prevention Act of 2004. In an effort to strengthen the board, Congress in 2007 transformed it into an independent agency within the executive branch and gave it subpoena powers.

But President George W. Bush declined to put forward a nominee recommended by Democrats, and in return the Democrats in control of the Senate refused to confirm Bush's GOP nominees. With Obama in the White House, Democrats and civil liberties advocates assumed the board would be filled.

Instead, Obama, who championed civil liberties during his presidential campaign, has not nominated anyone. Obama has had more pressing priorities -- health-care reform, war in Afghanistan -- but the inaction sends a signal, observers say, just as it did with the White House's eight-month delay in naming a cybersecurity coordinator, a position Obama had touted in a speech from the East Room.

Meanwhile, notes the American Civil Liberties Union's Jay Stanley, Obama "has found the time" to fill a slew of positions on boards such as the Ronald Reagan Centennial Commission and the President's Advisory Council on Faith-Based and Neighborhood Partnerships.

Granted, Stanley wrote in a blog last month, these positions might be easier to fill than the privacy board. "But it has been 14 months," he wrote. "More likely, this White House, like any White House, has no appetite for activating an independent body not under its control, a potential thorn in its side that might step on their 'message of the day' and distract from its agenda."

Former homeland security adviser Fran Townsend said launching the board is critical as the administration pushes domestic agencies -- the FBI and Department of Homeland Security -- to be aggressive. "They need that kind of guidance," she said at the intelligence reform conference, which was sponsored by the Bipartisan Policy Center.

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