Rachel Brand is one of five people nominated by President Barack Obama to sit on the Privacy and Civil Liberties Oversight Board, a government body with subpoena power given the responsibility of reporting twice a year to Congress and the public on civil liberties violations by the United States government. Whether this body acts as a vigorous watchdog for Americans’ constitutional rights or pliant rubber stamp enabling government intrusion into Americans’ private lives depends on the character and inclination of these five nominees. But curiously, I can’t find much discussion into the prior positions and activities of these nominees. In the next weeks I’ll try to rectify that.
Today, let’s look at nominee Rachel Brand in greater detail. The purpose here is not to assassinate Brand’s personal character, but to assess her past activities as an indication of her future inclination. In an article yesterday, I noted that as Assistant Attorney General for Legal Policy, Brand went out of her way to publicly assert that “there have been no verified abuses of any USA PATRIOT Act provision” when such a claim is demonstrably untrue for the time period she referenced.
Apart from the question of whether provisions of the USA PATRIOT Act were violated is the question of whether they are a good idea. Here, too, Rachel Brand came down on the side of government prerogative and against individual liberty, writing a 2005 op-ed piece in USA Today in which she defends the propriety of using national security letters to collect information on Americans without a warrant or probable cause:
In national security investigations, the FBI must follow up on every tip and every threat. The American people demand as much. NSLs, which predate the USA Patriot Act, enable the FBI to do so quickly and unobtrusively. An NSL is simply a request for information.
Brand’s defense of the Patriot Act as a necessary curtailment of individual autonomy for the sake of public safety from terrorists was not isolated to 2005. In the year before, Brand addressed the 14th Conference on Computers, Freedom and Privacy. Although audio of her participation has been lost, contemporary notes indicate her defense of Patriot Act authority. Before taking on an official position as Assistant Attorney General for the Office of Legal Policy in the Bush administration, Rachel Brand’s biographical notes indicate her active personal participation in Federalist Society debates in defense of the Patriot Act.
In her confirmation testimony (see page 111) Brand recognized and applauded the capacity for provisions of the Patriot Act to be used not just in cases of suspected terrorism but more broadly to investigate crime. Also in her confirmation testimony (see page 119) Brand argued that surveillance provisions of the Patriot Act should be approved on a permanent, not temporary, basis. Rachel Brand also argued (see page 120) that the government should not have to establish to a judge’s satisfaction that its warrantless surveillance was relevant to a terrorist investigation in order to proceed. Brand declined to indicate to the Senate (see page 131) how many times Patriot Act provisions had been used to obtain individuals’ library records, medical records, or gun sale records.
Also in 2005, Brand wrote a letter to the editor of the Roanoke Times. That letter does not appear in the Proquest or Lexis Nexis newsbanks, but Brand references it in her public questionnaire. Its title: “DNA Databases Will Not Invade People’s Privacy.”
In 2004, Rachel Brand testified before Congress that presumptive detention of people presumed to be terrorists would be an “important new counter-terrorism tool” and argued for increased use of warrantless “administrative subpoena” powers to replace the judicial warrants based on probable cause:
An administrative subpoena is an order from a government official to a third party, instructing the recipient to produce certain information. Because the subpoena is issued directly by an agency official, it can be issued as quickly as the development of an investigation requires.
To Brand, the 4th amendment constitutional requirement for demonstration of probable cause to an independent judge was an impediment, not a bulwark to protect the individual against arbitrary government.
These past activities are related to Rachel Brand’s future inclinations. In communication with the Senate Judiciary Committee, Brand outlines a limited scope of activities for the Privacy and Civil Liberties Oversight Board, a scope free of independent investigation:
To fulfill the Board’s more general oversight and advice functions (see 42 U.S.C. 2000ee(d)(1),(2)) the Board might focus on a small number of the most important privacy and civil liberties issues raised by the government’s efforts to combat terrorism. On the policy side, the Board might focus only on emerging issues. In the oversight context, the Board might focus on significant or systemic civil liberties violations that come to light, rather than attempting to serve as another Inspector General.
Rachel Brand was not a bystander in the implementation of the Bush administration’s surveillance policies. As she indicates in her confirmation testimony, for instance, (see page 124) she was centrally involved in the development of the “Attorney General Guidelines for FBI National Security Investigations.” In the last decade, Rachel Brand stood at the center of the Bush administration’s efforts to expand surveillance without warrants, probable cause or accountability. In 2012, Brand stands as one of the five nominees to protect your civil liberty.