Maine Sen. Susan Collins (Republican) and California Rep. Jane Harman (Democrat) wrote to (pdf) to President Obama this week asking him “about the delayed status of nominations to the Privacy and Civil Liberties Oversight Board.” Harman is Chairwoman of the US House Homeland Security Intelligence Subcommittee and Collins is Ranking Member of the US Senate Homeland Security and Governmental Affairs Committee.
A privacy and civil liberties oversight board was recommended by the 9/11 Commission, and the board was created in 2004 and placed within the White House. But, there was controversy in May 2007 when Democrat Lanny J. Davis resigned (pdf) from the board in protest of the Bush White House making substantial revisions and deletions to the board’s draft report. In its more than 200 revisions (1.5 MB pdf) to the report, the Bush White House deleted a passage on anti-terrorism programs where intelligence officials said the programs had “potentially problematic” intrusions on civil liberties. Later that year, Congress passed and President Bush signed the “Implementing the 9/11 Commission Recommendations Act of 2007,” which took the Privacy and Civil Liberties Oversight Board out of the White House and established it “as an independent agency within the executive branch.”
The new law said the five-member board’s purpose is to: “(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and (2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”
Terms for the original board expired in January 2008, but President Bush delayed the nomination of new board members for many months; none were confirmed by the Senate. President Obama has not yet nominated any members. As a result, the strengthened board has never begun operations. (For more information on the board, here’s a 2008 Congressional Research Service report (pdf) on the board’s history and powers.)
In their letter to Obama, Harman and Collins urged him “to move quickly to select members for this Board, which currently cannot perform its mandated role.” They continued, “The federal government’s response to 9/11 led to a sweeping and unprecedented restructuring of the laws affecting our national security and civil liberties. As Congress considers expiring provisions of the PATRIOT Act, the views of the Oversight Board would have been very useful. The Board could be a critical resource as you and we tackle other difficult issues.”
They also said that the board could “help navigate existing privacy laws” as Congress and the administration sought to improve the nation’s cybersecurity. Earlier this year, Obama’s White House “Cyberspace Policy Review” noted that (pdf) “it 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.”
Last week, the Washington Post published an op-ed by Alan Charles Raul, formerly vice chairman of the Privacy and Civil Liberties Oversight Board, who said,”the president should nominate forthwith a distinguished, bipartisan slate of members to reinvigorate the board. […] The lapse of the Privacy and Civil Liberties Oversight Board has been unacceptable. Its work remains vital regardless of what administration is in power.”