Overseeing the executive branch
Congress must strengthen the powers of the Privacy and Civil Liberties Oversight Board.
The 9/11 commission recommended not only increasing the powers of the federal government to protect us, but also enhancing the system of checks and balances to preserve the precious liberties that are vital to our American way of life. For this reason, the commission prescribed the creation of a board within the executive branch to ensure that the civil-liberties perspective got a fair hearing before national security decisions were made. Congress agreed and created the Privacy and Civil Liberties Oversight Board.
The board has now completed its first year of work. Its annual report is disappointing. The report takes up only a narrow range of issues. It finds no fault with existing government surveillance programs and provides little justification for those conclusions. It recommends no additional corrective actions.
One of the board's members, Lanny Davis, resigned in frustration last month because of limits on the board's role and White House vetting of the annual report. We share his concerns. We believe the board needs to take on an independent and more energetic role if it is to fulfill its intended purpose.
The authorizing statute for the board states: "The Board shall ensure that concerns with respect to privacy and civil liberties are appropriately considered in the implementation of laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism."
The board needs to talk about what the American people are talking about. It needs to take up the question of what to do about Guantánamo. The issues raised by the detention, interrogation, and treatment of detainees at Guantánamo and other facilities are central to the current civil-liberties debate. These issues include limited or no access to counsel, no habeas corpus, no limits on how long detainees may be held, and detainees' limited access to the evidence against them.
The board should examine practices used in interrogations and the use of evidence obtained through coercion or physical abuse. It is the defense of rights and civil liberties at the margins that ensure the health of those rights and civil liberties for all US citizens and legal residents.
If it is going to make a difference, the board needs to speak out about the problems it has identified and the corrective measures it has recommended and persuaded agencies to adopt.
It needs to tell the public which agencies have cooperated with the board and which have not. It needs to bring greater transparency to those activities of the executive branch that impinge on privacy and civil liberties, spelling out for the public why those activities are being carried out and with what safeguards, if any.
The board in its current configuration has difficulty carrying out its mission. Therefore, we strongly support a series of structural reforms (currently in House- and Senate-passed bills) to strengthen the powers and independence of the board. Those reforms would:
• Require Senate confirmation of board members.
• Provide a term of office for board members.
• Ensure political balance in the composition of the board.
• Grant the board subpoena powers.
• Require reports twice a year to Congress on its findings, conclusions, and recommendations.
• Establish the board as an independent agency in the executive branch.
The need for an independent board is self-evident. Stories in the press every day point to the importance of a strong voice and a second opinion within the executive branch before officials go ahead with controversial information-gathering measures.
The Privacy and Civil Liberties Oversight Board is the only office that looks across the entire executive branch to ensure that privacy and civil-liberties concerns are considered and addressed.
Congress needs to strengthen the board's powers, and the board needs to pursue its mandate with vigor. Every citizen has a strong interest in this body's success.
• Thomas H. Kean and Lee H. Hamilton are the former chair and vice chair of the 9/11 commission.