- The Washington Times - Tuesday, February 2, 2010

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.

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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.”

• Eli Lake can be reached at elake@washingtontimes.com.

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