It has now been 825 days since Barack Obama took ofice as President of the United States of America. President Obama has failed to follow federal law and fill the five empty chairs of the Privacy and Civil Liberties Oversight Board, and with this failure entering its third year, it’s not plausible to suggest that this is a mere oversight or mistake. Indeed, President Obama appears to have been strategic in finally bowing to pressure and naming two nominees to the Board in December of 2010 — three members are required for the Board to conduct any business, and Obama has not nominated a third member (or a fourth and fifth to fill the board completely).
On April 8, Senators Daniel Akaka, Susan Collins and Joseph Lieberman wrote a letter to Barack Obama asking him very courteously to obey the law:
April 8, 2011
The Honorable Barack Obama
The President of the United States
The White House
1600 Pennsylvania Avenue, NW
Washington DC, 20500
Dear Mr. President:
We are writing to express our deep concern about the lack of a functioning Privacy and Civil Liberties Oversight Board and to urge you to nominate a full slate of members for the Board as quickly as possible.
As you know, the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) authorized a Privacy and Civil Liberties Oversight Board to ensure that efforts to combat terrorism do not encroach on vital freedoms. The Board was a recommendation of the 9-11 Commission, which recognized that new efforts to prevent and deter terrorism might impinge on critical privacy and liberty concerns. In the words of the Commission, “At this time of increased and consolidated government authority, there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.” The Commission’s report went on to state, “Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.”
The original Board did begin this important oversight work. Congress subsequently concluded that its status, within the Executive Office of the President, did not allow it enough independence. In 2007, as part of the Implementing Recommendations of the 9/11 Commission Act of 2007 (P.L. 110-53), Congress reconstituted the Board as an independent entity outside the White House, with a full-time chairman and enhanced authorities, including subpoena authority through the Attorney General.
Unfortunately, this effort to create a more robust Privacy and Civil Liberties Oversight Board has instead resulted in no board at all. Although the Board was meant to begin its work in 2008, the Bush Administration and your Administration have been slow to select nominees for the new five-member Board. Two nominees are now before the Senate Judiciary Committee, but even if they were immediately confirmed they would not have a quorum to conduct business. It is imperative that the Administration complete its nomination process so that Congress can then expeditiously fulfill its advice-and-consent role and allow the new Board to begin its critical mission.
The 9/11 Commission Chair Thomas Kean and Vice-Chair Lee Hamilton strongly reiterated the need for the new Board in testimony before the Homeland Security and Governmental Affairs Committee last week, and we agree. We have been strong supporters of the nation’s expanded homeland security and counterterrorism capabilities but recognize that they present the potential for increased governmental intrusions into individuals’ lives and therefore bear careful monitoring. Noting the privacy and civil liberties concerns that the array of security-related policies and programs present, Kean and Hamilton stated that “a robust and visible Board can help reassure Americans that these programs are designed and executed with the preservation of our core values in mind.” Kean also told the Committee that “nothing has frustrated me more” than the failure to create the Board the Commission envisioned. We share Chairman Kean’s frustration. It is inexcusable that, more than three years after the new Board was meant to have begun its work, there is still no functional board at all. We ask that you give this matter your prompt attention and stand ready to work with your Administration to help the Board begin its work as soon as possible.
Joseph I. Lieberman Susan M. Collins
Chairman Ranking Member
Subcommittee on Oversight of Government Management, the Federal Workforce, and District of Columbia
The Senate Judiciary Committee, which would shepherd Board confirmations through the Senate, has not acted to confirm the two current (and numerically insufficient) nominees. Barack Obama has shown no sign of moving to nominate more members. Civil liberties oversight in America is undone today, and Day 826 looks no brighter.
Is this the Change You Can Believe In?