Oversight Board Needs Authority, Resources

By David A. Keene and David Cole

Miami Herald

April 24, 2006

The Bush administration has argued that the president has the “inherent power” in the “war on terror” to choose “the means and methods of engaging the enemy” free of any concerns about the political checks of the other branches—even when that includes wiretapping Americans at home without a warrant and in violation of existing criminal law. That position is contrary to constitutional principle and precedent. The framers of the Constitution were skeptical of claims of absolute power and tied our fate instead to an intricate system of checks and balances.

The fact that the administration takes such a view of its own prerogatives, however, underscores the importance of having a system of checks and balances within the executive branch itself. Internal checks are especially important where, as was the case with the National Security Agency’s spying program, the executive carries out initiatives in secret, and the American public only learns about them, if at all, through unauthorized leaks to the press.

The 9/11 Commission saw the need for such internal oversight and in December 2004 Congress passed legislation creating a Privacy and Civil Liberties Oversight Board, a five-member panel with jurisdiction to review executive branch policies, regulations and programs on national security to ensure that they safeguard Americans’ privacy rights and civil liberties. It has taken 15 months, however, just to get the board up and running.

Subpoena Power

The administration didn’t even nominate the members of the board until last June, six months after passage of the legislation, and the members weren’t sworn in until just last month.

More importantly, while the legislation creating the civil liberties board recognized the need for internal oversight, it was deficient in some important respects. The board lacks subpoena power. It is not independent but is contained within the Executive Office of the President. There is no requirement that it be bipartisan. Executive branch officials are not required to seek the board’s approval before implementing policies that may infringe civil liberties. And the board has been woefully underfunded.

Reps. Carolyn Maloney, D-N.Y., and Christopher Shays, R-Conn., have introduced bipartisan legislation to cure these deficiencies and “give teeth” to the board, but thus far no action has been taken on that front.

Many issues have arisen since 9/11 that could have been submitted to a real civil liberties board. They range from the NSA warrantless surveillance program to the use of watch lists in screening airline passengers to the government’s treatment of detainees at Guantánamo Bay. An independent civil liberties board with real authority could play a valuable role in the debate over how to keep us both safe and free.

As co-chairs of the Constitution Project’s bipartisan Liberty and Security Initiative, we have been working with a diverse group of prominent Americans—including Democrats, Republicans and independents, with experience in all three branches of government, academia, the media, and business—to forge consensus on how our government can simultaneously protect Americans’ security and their civil liberties.

New Legislation

We believe that the civil liberties board has been far too long in coming, but now that it is in place, the Congress and the president should work together to make certain that it has the resources and power to accomplish its mission. The only thing worse than no civil liberties board would be a sham civil liberties board.

Congress and the administration can rectify this situation. Congress should pass, and the president should sign, new legislation to strengthen the board’s hand while rendering it truly independent. Security and liberty are critical bipartisan issues for our nation, and we must make it a priority to address them through a functioning, independent and bipartisan board.

Mr. Keene is the chairman of the American Conservative Union and a managing associate with the Carmen Group, a Washington, D.C.-based governmental-affairs firm. David Cole is a professor of law at Georgetown University Law Center and a legal affairs correspondent for the Nation.