Bush inaction guts privacy oversight board
Nick Juliano
Published: Monday February 4, 2008

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As President Bush continues to spar with Congress over his demand that pending litigation that would examine his warrantless wiretapping program be thrown out of court, he seems to be furthering what critics see as his contempt for Americans' privacy rights by failing to staff a civil liberties oversight commission.

The 9/11 Commission recommended creating the five-member Privacy & Civil Liberties Oversight Board in its 2004 report, and it began work in March 2006 as a subsidiary of the Executive Office of the President. Last year, Congress further implemented 9/11 Commission recommendations and reconfigured the board to make it more independent and bipartisan -- no more than three members can be of the same party -- after the previous board was accused of being little more than a White House whitewash commission; now Bush seemingly has no interest in letting the board continue.

"We want them to be more than just the privacy version of Congressional Research Service," Timothy Sparapani, an ACLU lawyer told Wired's Ryan Singel. "They need to be able to slap hands and force people to consider privacy in the initial creation of programs, and then whack people into line when privacy violations occur."

Although terms of its current members expired Jan. 30, Bush has made no effort to nominate any new members to the Senate Homeland Security Committee, which would have first crack at approving any appointments. The committee's chairman and ranking member say this failure on Bush's part has created a gap in oversight aimed at protecting Americans' rights.

"I am concerned that the lack of transition planning to the new board has created a gap in the vital oversight we need as we respond to the new threats posed by terrorism," said Sen. Joe Lieberman (I-CT), the committee's chairman. "I urge the President to move swiftly to nominate members to the new board to preserve the public’s faith in our promise to protect their privacy and civil liberties as we work to protect the country against terrorism.”

Sen. Susan Collins (R-ME) said, "The White House's failure to move forward with appointing the new board is unacceptable."

As it was constituted, the privacy panel's members were hand-picked by the White House, and its only Democrat, Lanny J. Davis, resigned from the board in May after the Bush administration made 200 revisions to its first report to Congress.

Among the panel's members were former Solicitor General Theodore Olson, who argued on Bush's behalf in convincing the Supreme Court to stop a recount during the disputed vote in Florida in 2000; chairwoman Carol Dinkins, who was a campaign treasurer for President Bush; Mark A. Robbins, who served on the Bush-Cheney transition team in 2000; and Alan Charles Raul, a Bush donor who previously represented the Reagan White House during the Iran-Contra scandal.

In its final report to Congress (.pdf) issued Jan. 30, the board members' said their position within the White House created a "unique relationship" that allowed them to coordinate closely with executive brach agencies, such as the Departments of Justice and Homeland Security, which they were charged with overseeing.

"It will be unfortunate if these relationships cannot easily be duplicated with an independent oversight Board," they wrote.

Of course, that close relationship also led the board to do little in terms of actual oversight or criticism of the White House, civil liberties advocates tell Wired.

"This board failed miserably in its mission of helping to protect Americans' privacy and instead acted mainly to help the White House whitewash programs like warrantless NSA wiretapping that violate Americans' civil liberties," Lisa Graves, deputy director of the Center for National Securities Studies, told Singel. "Now that Congress has changed the board's rules to make it a little more independent, the White House appears to have no interest in appointing anyone to it."

The wiretapping program is front-and-center in Congress, as the Senate continues to debate modifications to the Foreign Intelligence Surveillance Act, which required the National Security Agency to get warrants before eavesdropping on Americans. Critics say Bush authorized the NSA, with cooperation of the nation's telecommunications companies, to violate FISA with his warrantless wiretapping program that was revealed in December 2005. Bush is pushing for an updated law to expand his authority under FISA and grant legal immunity to telecommunications companies who are the subject of some 40 lawsuits that critics say are the only means to exercise any oversight because the White House has refused to cooperate with Congressional investigations of Bush's program.

A 2007 law separated the board from the White House and required no more than three of its members be of the same party. The law, based on 9/11 Committee recommendations, required the administration and Congress to work "in a timely manner" to re-staff the board, but it's unclear what recourse the Homeland Security Committee would have if Bush continues to drag his feet on the nominations. A message seeking clarification was left with the committee Monday morning.