[Infowarrior] - WH privacy oversight panel gets short shrift

[Richard Forno]

February 2, 2010, updated 08:13 a.m., February 2, 2010
Liberties oversight panel gets short shrift
Eli Lake
http://washingtontimes.com/news/2010/feb/02/liberties-oversight-panel-gets-short-shr-15642008//print/

President Obama is coming under pressure from Democrats and civil  
liberties groups for failing to fill positions on an oversight panel  
formed in 2004 to make sure the government does not spy improperly on  
U.S. citizens.

The Privacy and Civil Liberties Oversight Board was recommended  
initially by the bipartisan September 11 commission as an  
institutional voice for privacy inside the intelligence community. Its  
charter was to recommend ways to mitigate the effects of far-reaching  
surveillance technology that the federal government uses to track  
terrorists.

The panel was established in 2004 under the Bush administration as  
part of the executive office of the president. Its independence was  
unclear for several years. Congress responded by increasing the  
board's budget, expanding its powers and moving it outside the  
presidential executive office in 2007.

Since taking office, Mr. Obama has allowed the board to languish. He  
has not even spent the panel's allocation from the fiscal 2010 budget.

On Friday, two leading Democrats — Rep. Bennie Thompson of  
Mississippi, chairman of the House Homeland Security Committee, and  
Rep. Jane Harman of California, chairman of that panel's subcommittee  
on intelligence, information sharing and terrorism risk assessment —  
sent a letter to Mr. Obama demanding action.

"We write to urge you to appoint individuals to the Privacy and Civil  
Liberties Oversight Board immediately. Your FY2010 budget appropriates  
funds for this board, but it remains unfulfilled," the lawmakers wrote.

The two Democrats noted that previous letters to Mr. Obama, including  
one from Mrs. Harman and Sen. Susan Collins, Maine Republican and  
ranking member of the Senate Homeland Security Committee, "remain  
unanswered."

The lawmakers said the need for the oversight panel is particularly  
urgent in light of proposed changes to terrorist-screening rules at  
airports after the attempted Christmas Day attack on a Northwest jet  
bound for Detroit.

"Given the recent events of December 25, 2009, and the prospective  
policy changes that will be made subsequent to this incident,  
including potential expansion of watch lists and widespread use of  
body-scanning technology, we believe that the Board will give an  
anxious public confidence that appropriate rights are respected," the  
lawmakers wrote.

Ben Rhodes, deputy national security adviser for strategic  
communications, defended the administration's record in general but  
acknowledged the Democrats' criticisms and said the White House would  
soon act on them.

"This president has made clear his commitment to civil liberties  
through the actions of his administration, and appreciates the  
congressional interest in this important issue. The White House has  
allocated funding for the civil liberties board, and looks forward to  
appointing its leadership soon," he said.

Mr. Thompson and Mrs. Harman are not alone. Last week, the two former  
chairmen of the September 11 commission, in testimony before the  
Senate Homeland Security Committee, also urged Mr. Obama to staff the  
civil liberties panel.

"You need somebody out here in the government that is checking  
everything that is done with regard to security, and asking  
themselves, can it be done better with a little more respect for  
privacy and civil liberties?" said former Rep. Lee Hamilton of  
Indiana, a Democrat who was chairman of the House International  
Relations Committee.

Mr. Hamilton said that "if you have an argument today in the  
[intelligence] bureaucracy between the security people and the civil  
liberties people, I'll tell you who's going to win the argument. It'll  
be the security people every time."

Former Gov. Thomas H. Kean, New Jersey Republican, said the civil  
liberties board "had disappeared." He added, "We have now a massive  
capacity in this country to develop data on individuals, and the board  
should be the champion of seeing that collection capabilities do not  
intrude into privacy and civil liberties."

The Obama administration's inaction contradicts the White House's  
public message of being a civil liberties champion. In the first two  
days of the Obama administration, the White House outlawed enhanced  
interrogation that was not enumerated in the Army Field Manual and  
vowed to close the terrorist detention facility at U.S. Naval Base  
Guantanamo Bay, Cuba, within a year, though it has not met its deadline.

Still, Mr. Obama has maintained some Bush-era precedents on civil  
liberties.

For example, the Obama administration pressed a British court last  
year to keep secret details of how terrorism suspect Binyam Mohammed  
was treated while in U.S. and Pakistani custody. The administration  
also has embraced in some cases the concept of indefinite detention  
for some terrorism suspects apprehended during the Bush presidency,  
and it has increased the practice of targeted killings in Pakistan and  
Yemen through unmanned aerial vehicles.

On the issue of surveillance, Mr. Obama during the presidential  
campaign voted for reauthorization of the Foreign Intelligence  
Surveillance Act, a bill criticized by the American Civil Liberties  
Union for providing only minimal court oversight to expansive  
electronic intelligence-collection programs.

In many ways, the civil liberties oversight board was designed to  
mitigate the effects of the new technology, which in turn prompted  
Congress to reauthorize the foreign intelligence surveillance law.

Lanny Davis said that when he served on the civil liberties board, he  
and the four other members were briefed on the terrorist surveillance  
program first disclosed to the public by the New York Times at the end  
of 2005. The board also was informed about the U.S. government's  
efforts to monitor financial interactions through the SWIFT database.

Mr. Davis said FBI Director Robert S. Mueller III told the board  
personally about concerns over the sending of national security  
letters, secret administrative subpoenas that require no judicial  
approval, to businesses and corporations after Sept. 11, 2001.

"The fact is, having civil libertarians taken into the confidence of  
the intelligence agencies is the best way to persuade Americans that  
we need these surveillance programs," Mr. Davis said. "Because if we  
say we are reassured, then Americans concerned about their privacy and  
civil liberties can be reassured."

Mr. Davis resigned from the board in 2007 after a White House staffer  
edited the board's first report and did not give the members a chance  
to approve the edit. One edit included deleting a board recommendation  
seeking a presidential executive order that would strengthen the  
board's independence.

The resignation of Mr. Davis prompted Congress in 2007 to reconstitute  
the board outside the office of the president but remain in the  
executive branch.

Steven Aftergood, who heads the project on government secrecy for the  
Federation of American Scientists, said the board is still important  
in part because the courts have dismissed many of the challenges to  
government surveillance programs.

"I think the board could help to resolve lingering disputes about the  
legality or propriety of various anti-terrorism policies," he said.

Chris Calabrese, a legislative counsel for the ACLU, agreed.

"This is clearly a black eye for the president's civil liberties  
record, that he has not appointed members to the civil liberties  
oversight board," he said. "The national security establishment  
represents more than 50,000 people and hundreds of billions of  
dollars. The fact there is no independent oversight board for that  
organization is deeply troubling."