As 9/11 commission co-chairmen Tom Kean and Lee Hamilton noted last week, the board has been "dormant" since 2008 because neither George W. Bush nor Barack Obama has managed to appoint its five members. This failure is vivid testimony to the continuing disregard for civil liberties and the rule of law under a president who promised to revive respect for both.
In its 2004 report, the 9/11 commission called for "a board within the executive branch to oversee adherence to the (privacy) guidelines we recommend and the commitment the government makes to defend our civil liberties." This oversight turned out to be a pretty cozy arrangement, since the board, created by Congress that December, was part of the White House and consisted of five members appointed by the president. One of them resigned in 2007 to protest interference by "senior White House officials" who insisted on editing the board's reports.
Congress beefed up the board in 2007, making it an independent agency with subpoena powers and requiring Senate confirmation of its members. In theory, those changes made the board a better watchdog; in practice, they made the board disappear, since the old one ceased to exist and the new one has never met.
In July 2008, Rep. Carolyn Maloney, D-N.Y., the House's leading advocate of the new, improved board, welcomed an impasse between Congress and President Bush over its membership. "If the goal is to protect civil liberties," she told Newsweek, "you might have a stronger board by waiting" for the next administration.
Or not. President Obama waited until last December, halfway through his term, to nominate anyone for the board. Neither of his two picks has been confirmed yet; even if both were, the board would still be one member shy of a quorum.
"If we were issuing grades," Kean and Hamilton say, "the implementation of this recommendation would receive a failing mark. A robust and visible board can help reassure Americans that these (anti-terrorism) programs are designed and executed with the preservation of our core values in mind. Board review can also give national security officials an extra degree of assurance that their efforts will not be perceived later as violating civil liberties."
This talk of reassurance is a bit alarming, since a properly functioning Privacy and Civil Liberties Oversight Board might conclude, from time to time, that the government's efforts to fight terrorism are not compatible with "our core values." The board should be highlighting violations of civil liberties, not preventing the public from noticing them.
Still, it would be nice to have an agency that focuses on the tradeoff between freedom and security -- or, more accurately, the tradeoff between one kind of security (against terrorism) and another (against tyranny). If it ever comes into being, the Privacy and Civil Liberties Oversight Board will have plenty to discuss.
In addition to those national security letters (which Kean and Hamilton note "may implicate the privacy of Americans" because they require no judicial review or probable cause), there are those nifty new whole-body scanners at the airport, those missiles the president uses to kill people he unilaterally identifies as enemies of the state, and those regulations the Justice Department wants to facilitate eavesdropping and snooping. Discussing these and other threats to privacy and civil liberties would highlight the continuity between Bush and Obama, neither of whom has ever hesitated to trust himself with more power.
Bush and Obama "just have not put an effective board in place," Hamilton recently told The Washington Times, "and I can't understand why." Seriously?
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