“The departments of Defense, State, and Health and Human Services have not met legal requirements meant to protect Americans’ civil liberties, and a board that’s supposed to enforce the mandates has been dormant since 2007,” according to a USA Today review of federal records.
“All three departments have failed to comply with a 2007 law directing them to appoint civil liberties protection officers and report regularly to Congress on the safeguards they use to make sure their programs don’t undermine the public’s rights and privacy, a USA TODAY review of congressional filings shows.”
The 2007 law at issue is the “Implementing the 9/11 Commission Recommendations Act of 2007,” which mandated the appointment of privacy and civil liberties officers in certain federal departments and required that the officers:
(1) assist the head of such department, agency, or element and other officials of such department, agency, or element in appropriately considering privacy and civil liberties concerns when such officials are proposing, developing, or implementing laws, regulations, policies, procedures, or guidelines related to efforts to protect the Nation against terrorism;
(2) periodically investigate and review department, agency, or element actions, policies, procedures, guidelines, and related laws and their implementation to ensure that such department, agency, or element is adequately considering privacy and civil liberties in its actions;
(3) ensure that such department, agency, or element has adequate procedures to receive, investigate, respond to, and redress complaints from individuals who allege such department, agency, or element has violated their privacy or civil liberties; and
(4) in providing advice on proposals to retain or enhance a particular governmental power the officer shall consider whether such department, agency, or element has established–
(A) that the need for the power is balanced with the need to protect privacy and civil liberties;
(B) that there is adequate supervision of the use by such department, agency, or element of the power to ensure protection of privacy and civil liberties; and
(C) that there are adequate guidelines and oversight to properly confine its use.
These are important functions and the federal agencies should move quickly to create these positions. It is necessary to have oversight of the numerous programs that implicate privacy and civil rights.
The 2007 law also moved the Privacy and Civil Liberties Oversight Board out of the White House and made it an independent agency. 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. As a result, the strengthened board has never begun operations. USA Today reports, “President Obama vowed after his election to give the oversight board subpoena power and make sure agencies meet civil liberties rules.”
I hope that Obama does follow through with strengthening the board, first by nominating members to the board and then ensuring they have enough funds to be able to fulfill their mission. I agree that the board needs subpoena power. Currently, the law requires that the board request that the Attorney General issue a subpoena. It would be much better for the board to be able to independently issue subpoenas, without involving the Justice Department in a possible conflict of interest.