Thursday, October 23rd, 2014

The Obameter

Give the White House's Privacy and Civil Liberties Board subpoena power


"Strengthen the Privacy and Civil Liberties Board with subpoena powers and reporting responsibilities."


Updates

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.

Sources:

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 ProPublica 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.

Sources:

ProPublica, 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