President Obama has failed to make any appointments to the Privacy and Civil Liberties Oversight Board. This board epitomizes the charades Washington has played since Sept, 11, 2001. Instead of stocking the board with the usual suspects, it would be far better to abolish it.
In late 2004, acting on a recommendation of the 9/11 Commission, Congress mandated the creation of the Privacy and Civil Liberties Oversight Board. President Bush did not bother nominating any board members until seven months later. The American Bar Association noted that his nominations were timed “as part of the administration’s push to encourage Congress to reauthorize provisions of the USA Patriot Act that expire within the next few months.” The existence of the oversight board supposedly guaranteed that Patriot Act powers would not be abused.
But the board was designed to be a rubber stamp. The president had the right to appoint board members and could fire them at any time. Almost all the board members were long-term Republican operatives.
The board heartily endorsed the National Security Agency’s (NSA) massive warrantless wiretaps on Americans’ phone calls and e-mails. And it never objected to the Bush administration doctrine that the Fourth Amendment prohibition on unreasonable searches is null and void during the war on terror.
In 2007, before the board could issue its final annual report, White House staffers massively rewrote and censored a draft version. Lanny Davis, one of the Democratic members of the board, resigned, protesting that “the board was logically viewed … as the functional equivalent of White House staff.”
But the board served an important point: It allowed members of Congress to pirouette as constitutional saviors. When the House passed legislation later in 2007 moving the board out of the White House and requiring Senate confirmation of its members, Rep. Carolyn Maloney proclaimed, “The American people must have trust in their government to support its tactics against terrorism, and a strong Civil Liberties Board is vital to upholding that public trust.” But the restructured board, like the original, was better designed to alleviate public fears than to restrain federal power.
When Mr. Bush lagged in appointing members to the restructured board, Sen. Joe Lieberman, chairman of the Senate Homeland Security Committee, urged him in 2008 to move quickly “to preserve the public’s faith in our promise to protect their privacy and civil liberties as we work to protect the country against terrorism.” Mr. Lieberman wanted to preserve “the public’s faith” at the same time he championed “enhanced interrogation” methods and retroactive immunity for any company or person who violated Americans’ rights in the name of anti-terrorism.
Last January, Rep. Bennie Thompson, chairman of the House Homeland Security committee, and Rep. Jane Harman, chairman of that panel’s subcommittee on intelligence, wrote Mr. Obama, urging him to make appointments speedily because “we believe that the Board will give an anxious public confidence that appropriate rights are respected.” Mrs. Harman is best known as the sponsor of the Violent Radicalization and Homegrown Terrorism Prevention Act, which could have spurred massive crackdowns on libertarians, constitutionalists and others with non-mainstream ideas.
The oversight board is far more likely to induce complacency than to protect liberty. Since Sept. 11, trampling the Constitution is a no-fault offense. In Washington nowadays, only extremists believe that federal officials should be jailed for violating citizens’ privacy.
After the New York Times exposed the NSA’s warrantless wiretapping, there was more enthusiasm in Congress for prosecuting Times’ editors and reporters for treason than for prosecuting NSA officials for violating federal law. Congress has shrugged off federal agencies creating a million-name watch list that wrongly brands scores of thousands of innocent Americans as terrorist suspects.
For every member of Congress such as Rep. Ron Paul, Texas Republican, or Sen. Russell Feingold, Wisconsin Democrat, who vigorously and consistently oppose federal abuses, there are vanloads of congressmen cheering federal agents trampling the statute book in the name of public safety.
In lieu of privacy and constitutional rights, Washington offers Americans another federal office to issue press releases and provide hand-wringing witnesses for congressional hearings. Unfortunately, the mere existence of such a board fosters the illusion that Washington is obeying the law.
“I’m from the government and I’m here to safeguard your privacy” is the post-Sept. 11 version of the old joke. But American liberty cannot afford any more sham protections. Abolishing the oversight board would be the most honest step Washington has taken on civil liberties in this century.
James Bovard is the author of “Attention Deficit Democracy” (Palgrave, 2006) and eight other books. He is a policy adviser for the Future of Freedom Foundation.