Time to restore the Privacy and Civil Liberties Oversight Board

I don’t doubt their sincerity. But I consider their position both wrong and reminiscent of the reckless guilt-by-association charges of the late Sen. Joe McCarthy, who more than a half-century ago accused most Democrats and the Truman administration of being “soft on communism.”

{mosads}Proof that there is nothing inconsistent between a strong antiterrorism position and protection of civil liberties could be seen in the creation, in 2004, of the Privacy and Civil Liberties Oversight Board by a Republican Congress, and signed into law by President George W. Bush. The board was a specific priority recommendation of the bipartisan 9/11 Commission and was enacted in the fall of 2004 as part of the Intelligence Reform Act.

I was honored to be appointed to serve on the first board by President Bush — a longtime friend going back to Yale College days in the ’60s. I, and four other members (including conservative Republican attorney Ted Olson, Bush’s former U.S. solicitor general) were sworn in to serve on the board in March 2006.

I didn’t fully recognize the value of this board until we were given full access and briefings, at the highest level of classified status in the U.S. government, concerning the Terrorist Surveillance Program (TSP), which we first learned about after The New York Times broke the story in the fall of 2006.

While I cannot disclose details, I can say that I was immensely impressed by the multiple levels of checks and balances, supervision and concern, about compromising the privacy rights and civil liberties of American citizens by those responsible for conducting the TSP. I remember thinking at one point that maybe, just maybe, out of over-concern for protection of these fundamental constitutional rights, we might actually miss intervening and preventing another Sept. 11-like attack.

Nevertheless, I was also relieved when, in 2008, the Bush administration finally (and in my opinion, belatedly) submitted to Congress and signed into law legislation that put the TSP and other antiterrorism programs on sounder legal and constitutional footing, and with enhanced congressional oversight.

But after about one year of service on the board, I came to realize that there was an inherent conflict and flaw in the way the board had been structured. While it was supposed to provide “independent oversight” and report to Congress, the Bush White House and some congressional Republicans had insisted that it be placed in the Office of the President. In practice, the board was logically viewed by senior White House officials as the functional equivalent of White House staff.

The result of this awkward hybrid was that the board’s first report to Congress, in the spring of 2007, was edited by senior White House officials and others. While most of the edits were not substantive, the fact of any edits at all in my view compromised the independence of the board. (In fairness, my fellow board members disagreed.) I decided to resign, but without any animus toward anyone in the White House. I just thought new legislation was needed to ensure full independence of the board.

The solution was relatively straightforward. In the 9/11 Recommendations Act of 2007, the board was taken out of the Office of the President and mandated to be an independent agency within the executive branch, with clear reporting responsibility to the Congress as well as the president.

For some reason, the Obama administration has yet to appoint any new members to the newly constituted five-member board, and it remains inoperative. I believe this is because there are a few other priority items the administration faced during its first year, such as the economic crisis, the wars in Iraq and Afghanistan and the need to pass comprehensive healthcare legislation to fix America’s broken system.

Recently, congressional leaders have called upon President Obama to make these appointments and reconstitute the board immediately. Reps. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, and Jane Harman (D-Calif.), chairwoman of the Subcommittee on Intelligence and Terrorism Risk Assessment, wrote in a Jan. 29, 2010, letter to Obama: “Given the recent events of Dec. 25, 2009” — a reference to the attempt to explode a bomb on a Detroit-bound airliner — “and the prospective policy changes that will be made subsequent to this incident, including potential expansion of watchlists and widespread use of body scanning technology, we believe that [a newly appointed] board will give an anxious public confidence that appropriate rights are respected.”

I hope and expect Obama — despite all the other items on his crowded agenda — will heed these words from leaders of both parties and expedite the appointment of a new Privacy and Civil Liberties Oversight Board. The Cheneys may continue to spread fear that this administration cannot reconcile protection of our republic with protection of our republic’s proud constitutional foundations. But reformulation of this board and its effective, independent oversight powers under the 2007 legislation is the best answer to that terribly wrong, and in my opinion dangerous, position.

Davis, a Washington lawyer and former special counsel to President Clinton from 1996-98, served as a member of President George W. Bush’s Privacy and Civil Liberties Oversight Board in 2005-06. He is the author of Scandal: How ‘Gotcha’ Politics is Destroying America.