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.”