Anti-terrorist Protection Without Sacrificing Civil Liberties

As President-elect Barack Obama confronts a myriad of domestic and foreign issues, one of the most critical will be what to do about the Terrorist Surveillance Program and other highly classified, covert programs that caused substantial civil liberties concerns during much of the Bush administration.

In this regard, his national security transition team will want to assess the effectiveness of the Privacy and Civil Liberties Oversight Board, a five-member, president-appointed panel that provides independent supervision of the government’s anti-terrorist activities that could infringe on privacy rights and civil liberties rights. The board was recommended by the 9/11 Commission and created by the 2004 Intelligence Reform Act, and subsequently amended in 2007.

I was honored to be selected by President Bush in mid-2005 to fill the Democratic slot on the first board constituted under the 2004 legislation. (Mr. Bush and I are old friends from Yale, and when he appointed me, he knew I was a longtime liberal Democrat concerned about privacy rights and civil liberties.)

Serving with me was Theodore Olson, a leading conservative lawyer and former U.S. solicitor general under Mr. Bush. Mr. Olson and I, from opposite sides of the ideological spectrum, found (at times to our amazement) that we agreed on most of the crucial issues and judgments presented to the board over the course of the next year.

Unfortunately, over time I found that the congressional compromise that established the board in 2004 — by creating a purportedly independent oversight panel but placing it within the Office of the President in the White House — inevitably undermined its independence.

For example, White House and other administration officials edited the board’s first unanimously approved report to Congress in 2006 before it was formally transmitted. As a result, I resigned from the board in the spring of 2007 — not in rancor, but simply because I believed the contradiction inherent in the legislation created an appearance of non-independence of the board, and that could only be fixed by Congress.

It was in August 2007 when new legislation was enacted to reconstitute the board and make it a completely independent executive agency with reporting responsibilities to both the White House and Congress.

With regard to the Terrorist Surveillance Program (TSP), the board for months met resistance from administration officials to being fully “read-in” to these programs, despite our having been cleared at the highest level of U.S. government classification. (Being “read-in” means being given full access to all senior officials, documents and personnel who were conducting the program in real time.)

Board members were unanimous in the position that we could not provide independent oversight of civil liberties issues if we were not read-in to not only the TSP but all government-wide, anti-terrorist programs. In the fall of 2006, thanks to the support of Mr. Bush himself, we were read-in.

After spending many hours on two separate days at the agency responsible for conducting the TSP, I came away both reassured and troubled by what I had seen.

I felt reassured as I watched firsthand as the program was occurring, understood why and how it was effective, and was able to ask questions and get answers from the front-line people as they were conducting the program. I was impressed with the brilliance, dedication and patriotism of these men and women who were working 24/7 to protect us from terrorist attacks — and with their frequently articulated concerns over even coming close to violating rules protecting the privacy rights and civil liberties of U.S. citizens.

Indeed, they seemed so concerned about this — and there were so many checks and balances and internal paper trails providing accountability for any errors made even inadvertently — that I sometimes wondered whether all these internal checks would get in the way of finding the bad guys and preventing another terrorist attack.

On the other hand, I was very troubled by what I believed to be the absence of serious legal and constitutional authority, judicial review and congressional oversight over the program. The only answer I received was an oblique reference to White House officials who did not believe additional authority from the Foreign Intelligence Surveillance Act (FISA) court or new authority from Congress was needed in the post-9/11 circumstance, and vague words about the inherent powers of the “unitary presidency.”

It was only several years into the startup of the TSP that the Bush Justice Department developed creative, even brilliant, new legal theories and sought and received explicit authority from the FISA court for the program. I couldn’t help but wonder why they had waited so long and hadn’t sought and received such authority from the program’s inception.

Then in the summer of 2008, Congress authorized the TSP program with closer FISA-court supervision and congressional oversight and reporting. (Then-Sen. Barack Obama, D-Ill., made the right decision, in my view, to support the compromise because of these additional safeguards, despite concerns from some liberal Democrats.)

The final takeaway for President-elect Obama and his national security transition team should be what I am sure many already know or will come to know soon: There is a great story to be told to the American people about the anti-terrorist programs of this government — a story that can reassure the civil libertarian liberals as much as the national security conservatives. The second version of a truly independent Privacy and Civil Liberties Oversight Board can and should be explicitly asked to play a crucial role in telling this story to the public and, thus, enhance confidence that their civil liberties and security are both being protected — without, of course, compromising the highly classified sources and methods of these programs.

This is another example of the fallacy of the false choice: There is no need to choose between civil liberties guaranteed in our Constitution and anti-terrorism surveillance that protects our nation from terrorist attacks.

We can have both — with good will on all sides by policymakers who trust and believe in our Founding Fathers’ constitutional framework of checks and balances among the executive, judicial and legislative branches of government.