Friday, October 23, 2009

Where's the Privacy and Civil Liberties Watchdog?

At least, that's the question posed in today's Washington Post by Alan Charles Raul, former vice chairman of the Privacy and Civil Liberties Oversight Board from 2006 to 2008.

I know little of the board Mr. Raul is referring, or the fact that the 9/11 commission recommended its creation, or that it has received little to no attention by either the Executive or Legislative branches since that time.

So, I'll let Mr. Raul do the I do find it to be an interesting topic:

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."


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.


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.

Click here to read the article in its entirety.

At first glance, my instinct is to say yes, of course we should have an independent body "to oversee . . . the commitment the government makes to defend our civil liberties" by advising the president and Cabinet. But, I don't want to go further than that at this point until I know more about how this board has, or could, function in actual practice.

The last thing we'd want is a rubber stamp that gives undeserved legitimacy to policies that violate our privacy and civil liberties. However, if there is real potential here to create a check on "Executive Branches Go Wild", them I'm all for it.

No comments: