We are now 797 days into the presidency of Barack Obama, more than halfway through his term in office. It is therefore no mistake that President Obama has failed to follow federal law and fill the five empty chairs of the Privacy and Civil Liberties Oversight Board. The Privacy and Civil Liberties Oversight Board should exist, hypothetically speaking, under federal law. Politicians refer to it as if it were functioning when they defend surveillance programs. But the board has no staff. It has no members. It does not meet. It has no activities. It does not exist.
If the Privacy and Civil Liberties Oversight Board existed, it would be doing some useful things. The board is given the power under law to act independently of the President or Congress to investigate violations of our our constitutionally-protected civil liberties. The Board has subpoena power to compel testimony and the production of evidence. It has a mandate to issue a report on violations of civil liberties twice a year to Congress and the American public. But the board has no members. It does not meet. It does not exist.
In December of 2010, President Obama nominated Elisebeth Cook and James Dempsey to be members of the Privacy and Civil Liberties Oversight Board. The Senate Judiciary Committee officially received those nominations in January, and since then the Judiciary Committee has sat on the nominations. There is no confirmation hearing scheduled for either Cook or Dempsey, much less a confirmation vote. Until that happens, the board will still have no members. It will have no activities. It will not exist.
Even if Elisebeth Cook and James Dempsey were to be confirmed to their positions on the Privacy and Civil Liberties Oversight Board, the board would still have no meetings or activities, because in order to do anything the Privacy and civil Liberties Oversight Board must achieve a quorum of three members. Since December of 2010, President Barack Obama hasn’t nominated a third person to sit on the board.
As of today, the entire notion of a Privacy and Civil Liberties Oversight Board in the United States government is a farce. The system set up under federal law to protect Americans’ rights does not exist. It’s going to stay that way as long as the President feels he can get away with it, as long as the Congress sits on its hands about it, as long as the news media doesn’t report on it, and as long as the American people don’t make a stink about it. That could be a very long time.