The Washington Post has an op-ed by Alan Charles Raul, a lawyer in Washington who was vice chairman of the Privacy and Civil Liberties Oversight Board from 2006 to 2008. The board had been created in 2004. 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. Raul says:
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.
Accordingly, the president should nominate forthwith a distinguished, bipartisan slate of members to reinvigorate the board. The chairman, who must serve full time, should be a former senior government official with substantial credibility within and outside the administration. The president should insist that the intelligence community, the departments of Justice and Homeland Security, and other agencies offer dedicated, talented staffers to serve as “detailees” for the board.
It is critical that the president make clear that while the board is “independent” of his White House, he personally embraces it.