Creating a Real Civil Liberties Oversight Board
by Isaac Kaufman
Minnesota Bill of Rights Defense Committee
On January 9, the new Democratic majority leadership in the House of Representatives, with bipartisan support, followed through on its pledge to enact the recommendations contained in the July 2004 report by the 9/11 Commission (H.R. 1). Those recommendations include numerous specific, aggressive steps to combat terrorism and to prevent another attack on American shores, including the tracking and disruption of terrorist financing, improved coordination of border security, new methods for screening airline travelers (such as biometrics and enforcement of “no-fly” lists) and the removal of barriers to the sharing of information between intelligence and law-enforcement agencies.
Some of the recommendations receiving less attention in the opening days of the current legislative session are those involving the protection of civil liberties. Very much to its credit, the 9/11 Commission recognized that as the federal government implemented anti-terrorist initiatives like those listed above, there would be a risk of incursions on the civil liberties that all Americans enjoy, including the rights to habeas corpus and due process and the protection against unreasonable searches and seizures. Accordingly, the Commission included in its report the following important recommendations:
“As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared.”
“The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.”
“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.”
In addition to the tightening of security envisioned in the report, the 9/11 Commission undoubtedly had in mind the civil liberties implications of actions that the federal government had already taken, including, among other things, the detention without due process of individuals unilaterally designated as “enemy combatants” and the expanded jurisdiction of the secret Foreign Surveillance Intelligence Act (FISA) courts under the USA PATRIOT Act. The 9/11 Commission realized that a significant rollback of Americans’ constitutional protections was already underway, ostensibly as a necessary part of the “war on terror,” and that additional oversight was critically needed.
Since the release of the 9/11 Commission Report, of course, the federal government has continued to expand its powers at the expense of civil liberties. This has included the disclosure of a warrantless wiretapping program and the enactment of the Military Commissions Act, which strips non-citizens of habeas corpus rights and seems to open the door for the use of evidence gained through coercive interrogation techniques. The Bush Administration has effectively ignored the 9/11 Commission’s recommendation that it bear the burden of demonstrating that such new powers actually improve security and are adequately supervised to protect civil liberties. This trend has been made all the more troubling by the Administration’s lack of candor regarding the effect of its intelligence activities on our constitutional rights. In April 2004, for example, President Bush downplayed concerns over the PATRIOT Act by stating at a press conference that “anytime you hear the United States government talking about a wiretap, it requires – a wiretap requires a court order. Nothing has changed, by the way.” We now know that this statement was untrue.
The White House has tried to slow the momentum of the new House leadership by declaring that the Commission’s recommendations are already being implemented. While it is true that the Intelligence Reform and Terrorism Prevention Act, signed into law in December 2004, included the creation of a Privacy and Civil Liberties Oversight Board, all indications are that this was purely a public relations gesture -- as the 9/11 Commission’s Chairman, Thomas Kean, put it, “the Administration was never interested in this.” The staffing of the five-member Oversight Board was delayed for over a year, and the Board did not hold its first meeting until March 2006. The Board is not independent in any meaningful way – its members are appointed by and serve at the pleasure of the President. There are also preexisting connections between the Board members and the President that call into question whether the Board will give valid, disinterested advice on civil liberties issues: for example, Board Chair Carol Dinkins formerly served as Commissioner of the State Parks and Wildlife Department and Chair of the Governor’s Task Force on Conservation during President Bush’s tenure as Governor of Texas. Board member Theodore Olson represented the Bush Administration as U.S. Solicitor General during the President’s first term. The Board’s Executive Director, Mark Robbins, was a member of the Bush-Cheney transition team in 2000.
Further preventing he existing Privacy and Civil Liberties Oversight Board from playing an effective oversight role is the lack of subpoena power. While the Board may request testimony and records from federal employees and agencies, any such requests may be summarily quashed by the Attorney General. Common sense tells us that this is anathema to any kind of meaningful oversight. Subpoena power would not, as critics will surely argue, be merely a recipe for an endless series of hearings. Rather, this power is necessary in order for the Board to investigate allegations of civil rights abuses and to make appropriate findings.
The toothlessness of the current Board was demonstrated by a hearing held in December 2006, supposedly to address concerns over the warrantless wiretap program. (The Board had not even been briefed on the program until October 2006, almost a year after the existence of the program was leaked to the media.) Not surprisingly, the hearing uncovered no new information and did not challenge the so-called “inherent executive power” used by President Bush to justify warrantless eavesdropping. One member stated that the Board’s priority must be to “provide advice confidentially” to the President.
Subtitle A of the bill passed by the House on January 9, entitled the Protection of Civil Liberties Act, amends the Intelligence Reform and Terrorism Prevention Act to address squarely the flaws in the oversight system described above. Regarding the independence of the Privacy and Civil Liberties Oversight Board, section 804 of the bill requires that Board members “be selected solely on the basis of their professional qualifications, achievements, public stature, expertise in civil liberties and privacy, and relevant experience, and without regard to political affiliation.” Section 805 of the bill authorizes the Board to issue subpoenas for “any relevant information, documents, reports, answers, records, accounts, papers, and other documentary and testimonial evidence,” and to enforce such subpoenas in federal court. These provisions are a significant step toward stemming the steady erosion of the Bill of Rights that we have witnessed over the past five years.
The Senate version of this bill (S. 4) is currently before the Senate Committee n Homeland Security and Governmental Affairs. S. 4 contains the same language as the House bill regarding qualifications for membership on the Civil Liberties Oversight Board. The section of S. 4 regarding the Board’s subpoena power, however, is troubling – under that version, the Board would be limited to filing requests with the Attorney General’s office for the issuance of subpoenas, whereupon the Attorney General could either issue, modify or deny the subpoena for any reason.
It is anticipated that differences between H. 1 and S. 4 will eventually
have to be resolved in committee. All Americans concerned with civil
liberties should urge their representatives in both houses of Congress
to make sure that the legislation placed on the President’s
desk establishes a truly independent Civil Liberties Oversight Board
with robust investigative powers. In the wake of the recent elections,
the President should recognize that vetoing that legislation will
not be an option.