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The Privacy and Civil Liberties Oversight Board: In Need of Attention

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The Privacy and Civil Liberties Oversight Board was created by Congress in 2004 in response to the recommendations contained in the 9/11 Commission report. The Board's mission is to review the privacy and civil liberties issues raised by the government's national security policies and programs. Originally housed within the Executive Office of the President, the Board was not initially given the independence it needed to provide effective oversight. It also lacked a bipartisan membership requirement, as well as subpoena power, making the Board little more than a public relations device. Unfortunately, despite amendments passed by Congress in 2007 to cure these deficiencies, the Board's mission remains an unfulfilled promise.

These shortcomings have been well-documented since the Board's creation. In April 2006, the co-chairs of the Constitution Project's Liberty and Security Committee, David Keene of the American Conservative Union and Professor David Cole of the Georgetown University Law Center, published an op-ed in the Miami Herald calling on the president and Congress to pass legislation to make the Board independent and to provide it with the structure and tools it needed to conduct true oversight.

In 2007, Congress finally passed the Implementing Recommendations of the 9/11 Commission Act that aimed to provide the Board with real authority. The legislation moved the Board out of the Executive Office of the President, giving it much-needed bureaucratic independence. The legislation also granted the Board subpoena power and called for the Board to have a bipartisan membership of five, to be nominated by the president and confirmed by the Senate, and to serve for fixed terms.

Unfortunately, there was little follow-through to implement the legislative fixes. President Bush did not submit any nominees to the Senate for confirmation until February 2008, at which time he nominated the three Republican members. In the summer of 2008, President Bush finally nominated one Democratic member, but in an election year, and without a full slate of members nominated, the Senate was in no hurry to confirm anyone for membership on the Board.

In June 2008, the Constitution Project wrote a letter to the Bush administration and the Senate, urging them to end the delay in the nomination and confirmation of Board members and to allow the Board to begin its work as an independent and effective oversight body. But by the end of 2008, President Bush had still not nominated a second Democrat and the Senate had still not confirmed any of the four nominees the president had selected. The Board had seemingly become a victim of election-year politics.

To date, the Obama administration has made no progress on this matter, other than a statement issued by the president last May that merely noted the importance of confirming members to the Board. In a statement issued to Pro Publica this past summer, Thomas Kean, the chairman of the 9/11 Commission, stated that the administration's lack of progress on the Board was "extremely disappointing."

The Constitution Project urges President Obama and the Senate to move quickly to end this limbo. The president should nominate and the Senate should confirm members of the Privacy and Civil Liberties Oversight Board, and allow the Board to begin the vital work it was assigned five years ago: to protect our privacy rights and civil liberties as our government pursues policies and programs designed to defend our national security.