Back in 2003, the national commission on the Sept. 11 attacks advised that as the country bulked up its defenses against terrorism, the watchers themselves would require watching. Congress heeded the warning and created the Privacy and Civil Liberties Oversight Board in 2004 to make certain more aggressive intelligence collection did not unduly infringe on Americans' rights.
“We thought everything with a national security label on it was going to pass,†said Thomas H. Kean, chairman of the 9/11 commission and former governor of New Jersey, in an interview. “So we felt very strongly that there had to be some voice for civil liberties in the debate.â€
Thus began a long, sad story - one quite relevant to The Agenda's look at the balance of security and civil liberty. It's probably fair to say that few governmental bodies have had a more troubled childhood than this one.
Over most of the eight years since i t was formally established, the board has rarely functioned at all, let alone proven to be an aggressive watchdog. Neglected by the Bush and Obama administrations and hampered by political squabbles, it has been out of business altogether for five years.
“It's just been a total frustration,†said Mr. Kean, who has testified repeatedly to Congress about the need to get a strong board up and running.
Now, that may be happening. Or not, depending on who is talking.
The board got off to a slow start initially and held its first meeting in 2006. Critics noted that since it was then technically part of the White House, it could hardly be considered independent - a point a Democratic member, Lanny J. Davis, emphasized when he resigned in protest in 2007.
That year, heeding the complaints, Congress passed new legislation strengthening the board and removing it from the White House. But for nearly three years after taking offi ce, President Obama did not even nominate a full slate of five members to the reconstituted board. He finally completed the nominations in December.
Last week, the Senate confirmed four of the five members - two Republicans, Elisabeth C. Cook, a lawyer at Wilmer Hale, and Rachel L. Brand, chief counsel for regulatory litigation at the U.S. Chamber of Commerce; and two Democrats, James X. Dempsey, vice president of the Center for Democracy and Technology, and Patricia M. Wald, a retired federal judge.
But because of the objection of unnamed senators, it took no action on the board's full-time chairman, David Medine, a Democrat and lawyer who long worked at the Federal Trade Commission and now is working temporarily at the Securities and Exchange Commission while awaiting Senate action.
The chairman is the board's only full-time member and has the authority to hire a staff. So whether the board can begin its work without Mr. Medine is uncertain; two of the co nfirmed board members said they had agreed not to comment for the time being.
One theory circulating in Washington is that the delay is Republican strategy: if Mitt Romney becomes president and the job is not yet filled, he will be able to appoint a member of his party to a six-year term as chairman.
Mr. Kean, a Republican, said he hoped that was not his party's strategy. He said Mr. Medine appears to be a qualified and not unduly partisan choice, and that further delay is unacceptable. “We were delighted that at least a majority of the board is confirmed,†he said. “My hope is they'll follow up with the chairman.â€
Sharon Bradford Franklin, senior counsel at The Constitution Project, which advocates for civil liberties in Washington, noted that cybersecurity bills proposed in Congress include a formal role for the board and said it is long since time for the board to go to work. The goal, she said, “is not to end national security programs but to make sure they're designed in a smart way.â€
By all accounts, the 2007 law gives the board genuine clout. It will have access to even the most secret government programs, with subpoena power to enforce its demands. In principle, it could prove to be a significance check on the counterterrorism machinery built over the last decade. But to do so, the board will have to overcome a daunting history, even by Washington standards, of delay and neglect.
What do you think? Is it time to give the board a chance to operate? Or are there sufficient public and private watchdogs over the agencies whose job is to keep Americans safe from the likes of Al Qaeda?
