- The Washington Times - Tuesday, August 30, 2011

An independent oversight board recommended by the 9/11 Commission to ensure that national security policies do not infringe on Americans’ civil liberties has remained dormant for years, raising concerns among watchdogs that a crucial Constitution safeguard does not exist.

Well past the halfway point of his term, President Obama has appointed only two of the five members for the Privacy and Civil Liberties Oversight Board, which also languished under President Bush.

“There are no excuses for not getting this board up and running,” said Sharon Bradford Franklin, senior counsel at the Constitution Project, one of more than a dozen groups that recently petitioned the administration to get the board operational.

Analysts say a host of national security issues — such as airport screening, cybersecurity policies and an upcoming Supreme Court case on whether law enforcement can attach a satellite tracking device without a warrant — would have benefited from independent oversight.

“The launch of an independent oversight board is long overdue,” Ms. Franklin said.

The White House has no explanation for why the board vacancies have proved so hard to fill, and declined an opportunity to comment for this article.

According to the board’s 2007 report to Congress, one of its tasks was to review the FBI’s use of national security letters, which allow authorities to get financial, credit and other information on U.S. citizens without a court order.

“If the board is no longer meeting, one would assume it is no longer performing this oversight role, which is concerning given the recent extension of the Patriot Act,” Jennifer Lynch, staff attorney for the Electronic Freedom Foundation, said in an email.

Civil liberties groups have pushed for years to get the board fully operational after Congress strengthened it in 2007 and gave it subpoena powers.

But since then, neither Mr. Bush nor Mr. Obama nominated enough members. Mr. Obama nominated two members last year, but three vacancies remain.

Mr. Obama’s nominees so far are James Dempsey, vice president of public policy at the Center for Democracy and Technology, and Elizabeth Collins Cook, a lawyer in private practice who worked in the Justice Department in the Bush administration.

Last week, more than a dozen organizations wrote to Mr. Obama expressing concerns about the lack of nominations to the board.

“Sadly, although Congress took the important step of creating an independent body tasked with both advising the executive branch on policy and overseeing its implementation, the [privacy board] has remained an unfilled promise,” the groups wrote in a letter to the White House. Among the groups that signed the letter were the Constitution Project and Electronic Frontier Foundation.

The oversight board was formed in 2004. It came under criticism for being too close to the Bush White House, so Congress made it an independent panel in 2007.

However, the lack of activity by the board has been a concern for years.

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