Some changes but still no direct subpoena power
The Privacy and Civil Liberties Oversight Board is an independent agency that makes sure national intelligence efforts against terrorism don't infringe on people's privacy and civil liberties. The bipartisan body emerged out of the 9/11 Commission recommendations followed up by a law passed in 2007.
It is made up of five members, all nominated by the president and approved by the Senate. Through much of Obama's first term, the board existed in name only because it lacked a full complement of five appointees. But in 2012, four members won approval, and in 2013, the board gained a chairman, David Medine, to fill out the roster.
Neema Guliani with the American Civil Liberties Union gives props to the administration for reviving a dormant agency.
"In Obama's second term, you've seen that board become more active," Guliani said. "The board has issued two reports that provided an important contribution to the public debate."
Unfortunately, Guliani noted, the chairman stepped down in July 2016, and Obama has yet to replace him, leaving the board with only four members.
"It remains to be seen whether the administration will leave the board as healthy as it might be," she said.
If Obama took steps to staff up the board, he was less successful at giving it direct subpoena powers. Under the 2007 law that created the board, it can subpoena witnesses, but it must ask the attorney general to issue the subpoena on its behalf. The board is classified as an agency and agencies can be given direct subpoena powers. At this point, Congress would need to pass a law to give the board that power and that has not happened.
During Obama's first term, we rated this Promise Broken. Without its own subpoena power, it remains Promise Broken.
U.S. Government Printing Office, Enabling legislation: Privacy and Civil Liberties Protection Board, Aug. 3, 2007
Interview, Neema Guliani, legislative counsel, American Civil Liberties Union, Sept. 15, 2016
Email interview, Jen Burita, spokesperson, Privacy and Civil Liberties Oversight Board, Oct. 3, 2016
Email interview, Jeffrey Lubbers, professor of practice in administrative law, Washington College of Law, American University, Oct. 5, 2016
Nonexistent board with no new powers or responsibilities
In theory, the Privacy and Civil Liberties Oversight Board is an independent watchdog that makes sure national intelligence efforts against terrorism don't infringe on people's privacy and civil liberties. The key phrase is, "in theory.”
In practice, the board does not exist. It doesn't have any confirmed members and can't have a meeting.
As a candidate, Barack Obama said he would strengthen the board with subpoena powers and reporting responsibilities. The board came out of recommendations from the 9/11 Commission. A law passed in 2007 mandated that the board would be bipartisan, an independent agency within the executive branch and would have five members. President George W. Bush nominated members to the board in 2008, but the Senate never confirmed them.
That left President Obama with the task of appointing the new board.
Sharon Bradford Franklin, senior counsel at the Constitution Project, said Obama's efforts to establish and strengthen the board were "very discouraging to say the least … He clearly did not make this the kind of priority we would have hoped.”
Obama announced two nominees in December 2010, but waited another year for the final three. Before then, he hadn't nominated enough people to constitute a quorum -- in other words, it couldn't have conducted business. The Senate Judiciary Committee approved the nominees in May, but as of this writing, the Senate has yet to vote on them.
Kara Carscaden, a spokeswoman for the Obama campaign, blamed Senate Republicans for slowing down the nomination process by blocking the president's nominees.
We find that's a stretch. Although it's true that all eight Republicans on the Senate Judiciary Committee voted against David Medine -- slated to be the board's chairman -- they weren't successful in blocking his nomination. And we've seen nothing from the White House that indicates Obama made a significant effort to get the board up and running before December 2011.
Chris Calabrese, legislative counsel at the American Civil Liberties Union, said that with the Obama administration's late nominations, "you're not strengthening (the board), but weakening it and hollowing it out.”
"The most relevant thing is that this nomination took three years to happen,” Calabrese said. "It only happened in an election year, essentially.”
During his campaign, Obama said he would give the board subpoena powers. Under current law, the board relies on the Attorney General to issue subpoenas for people's records. The board has to submit a written request -- which can be modified or denied by the Attorney General. If the board had direct subpoena power, it might improve the efficiency and ease of investigations, Calabrese said.
The board already has the power to request records from departments, agencies and other parts of the executive branch. In that case, if the board does not receive the desired documents, it would lodge a complaint with the head of the department or agency.
As for reporting responsibilities, the 2007 law requires that the board testify before Congress on request and submit at least semi-annual reports to a variety of congressional committees. As with subpoena powers, we didn't find any sign that this had changed.
To review, we found no evidence that the Obama administration pushed for new subpoena powers or reporting responsibilities. As Calabrese said, such efforts would be "nonsensical” since the board has no members or staff. We consider a nonexistent board with no additional subpoena powers or reporting responsibilities a Promise Broken.
Email interview with Chris Calabrese, legislative counsel at the American Civil Liberties Union, June 20, 2012
Email interview with Sharon Bradford Franklin, senior counsel at The Constitution Project, June 20, 2012
Email interview with Patrice McDermott, executive director of the OpenTheGovernment.org, June 22, 2012
Senate Judiciary Committee, 112th Congress, Results of the Executive Business Meeting, May 17, 2012
Congressional Research Services, Privacy and Civil Liberties Oversight Board:
New Independent Agency Status, Nov. 14, 2011
CQ Weekly, A Privacy Committee of None, April 18, 2011 (subscription)
CQ Weekly, The Civil Liberties Oversight Board That Isn't, March 15, 2010 (subscription)
House Resolution 1, Implementing Recommendations of the 9/11 Commission Act of 2007, Title VIII: Privacy and Civil Liberties, SEC. 801. Modification of authorities relating to Privacy and Civil Liberties Oversight Board
Senate Judiciary Committee, 112th Congress: Executive Nominations: Privacy and Civil Liberties Oversight Board
The White House, Office of the Press Secretary, President Obama Announces More Key Administration Posts, Dec. 15, 2011
The Obama-Biden Plan, Improve Intelligence Capacity and Protect Civil Liberties, Give Real Authority to the Privacy and Civil Liberties Board
American Civil Liberties Union, The limits of oversight and the PCLOB, Chris Calabrese, May 17, 2012
Strengthening the Privacy and Civil Liberties Board? More like hiding it.
A report from the independent news Web site
inspired us to update this item.
ProPublica monitors the White House Web site with special software, looking for changes and documenting those changes for a project it calls ChangeTracker . ProPublica recently noticed that the White House had removed a link from its Web site to the White House's Privacy and Civil Liberties Board.
The board was created in 2004 during the Bush administration, but has had problems fielding a full board membership. (Read ProPublica's full report on its history.) The board's task, suggested by the 9/11 Commission, is to review actions the executive branch takes to protect the country from terrorism to make sure that "the need for such actions is balanced with the need to protect privacy and civil liberties," among other things. In 2008, President George W. Bush's nominees were never confirmed by Congress.
Obama has yet to nominate any members to the five-member board. We asked the White House about the board's membership and whether Obama still hoped to grant the board subpoena power. We didn't get an answer.
On the other hand, the board is funded, receiving appropriations from Congress earlier this year. A White House report on Cyberspace Policy released in May said it was important to reconstitute the board and "accelerate the selection process for its board members and consider whether to seek legislative amendments to broaden its scope to include cybersecurity-related issues."
Nevertheless, we find the board's removal from the White House Web site a sign that the administration seeks to downplay the board's role, not enhance it with additional powers. And its membership remains unfilled. We'll be watching to see if this board is revived and if it gets subpoena power. If it doesn't, it will be a broken promise. For now, we rate it Stalled.
Disappearance of Privacy Board From White House Web Site Raises Questions
, July 14, 2009
Government Printing Office, Intelligence Reform and Terrorist Prevention Act of 2004: Sec. 1061: Privacy and Civil Liberties Board , accessed July 27, 2009
Government Printing Office, Implementing Recommendations of the 9/11 Commission Act of 2007: Sec. 801: Privacy and Civil Liberties Board , accessed July 27, 2009
U.S. Sen. Patrick Leahy, Critical FOIA Office Receives Funding In Omnibus , March 11, 2009
White House, Cyberspace Policy Review , May 29, 2009