from the January issue of The Freeman –
How Washington Protects Your Privacy and Liberty
January/February 2011 • Volume: 61 • Issue: 1
Preserving trust in government is the highest good—at least for politicians. To create that trust, government continually spawns façades to make people believe their rights are safe. Few things better illustrate this charade than the Privacy and Civil Liberties Oversight Board.
In 2004, three years after the Patriot Act was enacted, politicians started to worry about the rising number of Americans grumbling about government intrusions. The 9/11 Commission proposed creating “a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.” Creating another office within the executive branch to report on executive branch activities was unlikely to produce anything more than extra jobs for Washington hangers-on. The White House edited the 9/11 commission’s report before it was publicly released, so the Bush team had no trouble with this toothless-tiger palliative.
In December 2004, acting on the commission’s recommendation, Congress mandated the creation of the Privacy and Civil Liberties Oversight Board. The same law that created the oversight board also made it easier for the FBI to get eavesdropping warrants on Americans, created a new standard to make it easier to prosecute citizens who donate to foreign charities of which the U.S. government disapproves, and provided a new layer of secrecy for federal agencies.
Some congressmen hailed the board as the start of a brave new era. Things would be different since there was a new sheriff in Washington—or at least that was what people were supposed to think. The civil liberties developments in the years after the board was created offer profound lessons into how the government works.
It would have been difficult to design a better rubber stamp than the Privacy and Civil Liberties Oversight Board. It had no subpoena power, so it was effectively obliged to accept unsubstantiated assertions from the agencies violating privacy and liberty. The president had the right to appoint board members and could fire them any time. Bush did not appoint any experts on civil liberties; instead, the board was stacked with Republicans who formerly held government positions as enforcement zealots. And the first appointments did not occur until seven months after the law passed. The American Bar Association noted that Bush’s nominations were timed “as part of the administration’s push to encourage Congress to reauthorize provisions of the USA Patriot Act that expire within the next few months.” The oversight board supposedly guaranteed that Patriot Act powers would not be abused.
Six months after Bush stacked the board, the biggest civil liberties expose of recent decades exploded on the front page of the New York Times. The prior year, when he was running for reelection, Bush assured Americans that no wiretaps were occurring without federal court authorization. But the Times revealed that the National Security Agency (NSA) had conducted warrantless wiretaps on thousands of Americans based on flimsy pretexts. The Times’ James Risen reported that Bush’s “secret presidential order has given the NSA the freedom to peruse . . . the email of millions of Americans.” The NSA’s program was quickly christened the “J. Edgar Hoover Memorial Vacuum Cleaner.”
In the Fourth Amendment of the Bill of Rights the Founding Fathers decreed that government searches must be based on probable cause and approved by a neutral magistrate. The Bush wiretapping program was based solely on the president’s edict. Shift supervisors at the National Security Agency decided which Americans got wiretapped. But a GS-13 civil servant is not constitutionally on par with a federal judge.
An Ineffective Rage
Did the existence of the Privacy and Civil Liberties Oversight Board change how the wiretapping scandal played out? Not a whit. Bush seized on the Times exposé to portray himself as heroically rising above the statute book to protect the American people. A month later, Republican members of Congress gave Bush a standing ovation when he bragged about his “terrorist surveillance program” in his State of the Union address. There was more enthusiasm in Congress for prosecuting New York Times editors and reporters for treason than for prosecuting NSA officials for violating federal law.
Supporters of civil liberties rallied a few months later to try to slow the bandwagon to renew the Patriot Act. One major concern was the provision in the original Patriot Act that made it far easier for the FBI to use National Security Letters (NSLs) to compel private citizens, businesses, nonprofits, and other entities to surrender information on demand. NSLs empower the FBI to seize records that reveal “where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work,” the Washington Post noted. The FBI was issuing more than 50,000 NSLs per year.
While Bush pressured Congress to renew the Patriot Act in 2005, Attorney General Alberto Gonzales announced, “The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the act was passed. There has not been one verified case of civil liberties abuse.” In reality the feds had already discovered hundreds of criminal abuses of Patriot Act powers involving FBI agents and NSLs. But the abuses were kept under wraps until after Congress renewed the Patriot Act.
A bipartisan agreement to renew the Patriot Act was finally reached, giving the White House almost everything it wanted. As part of the deal Bush administration officials agreed to provide Congress far more details on how Patriot Act powers were being used. The Justice Department would be obliged to disclose to Congress how many Americans were having their privacy violated by NSLs.
However, Bush reneged in a “signing statement” quietly released after a heavily hyped White House bill-signing ceremony. He decreed that he was entitled to deny Congress any information that would “impair foreign relations, national security, the deliberative process of the executive, or the performance of the executive’s constitutional duties.” Bush announced that he would interpret the law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch and to withhold information.”
In other words, any provision of the law that required disclosure would be presumptively null and void. The crux of the Bush administration’s “unitary executive” doctrine was that all power rests in the president and that “checks and balances” are archaic.
The Privacy and Civil Liberties Oversight Board had no complaint about this charade. Instead, the members belatedly and heartily endorsed the NSA’s warrantless wiretaps on Americans’ phone calls and emails.
In 2007, before the Board could issue its first annual report, White House staffers massively rewrote and censored a draft version. Lanny Davis, the sole Democratic member of the board, resigned, later protesting that “the board was logically viewed . . . as the functional equivalent of White House staff.”
But the mere existence of the board allowed members of Congress to pirouette as constitutional saviors. When the House passed legislation later in 2007 moving the board out of the White House and requiring Senate confirmation of its members, Rep. Carolyn Maloney proclaimed, “The American people must have trust in their government to support its tactics against terrorism, and a strong Civil Liberties Board is vital to upholding that public trust.” But the restructured board, like the original, was better designed to alleviate public fears than to restrain federal power. The “reformed” Board was given little or no power to acquire information that federal agencies chose not to give. And it is difficult to understand how requiring Senate confirmation of Board members was a silver bullet, since the Senate had given approval, retroactive or otherwise, to the Bush administration’s most controversial abuses.
The same season that Congress passed the civil liberties board reform proposal it also enacted a law requiring the Homeland Security Department’s chief privacy officer to “to report each year about Homeland Security activities that affect privacy,” the New York Times reported. The law required that “reports be submitted directly to Congress ‘without any prior comment or amendment’ by superiors at the department or the White House.” Congress passed this law because of an earlier controversy about White House censorship of the Homeland Security Department’s report on privacy violations.
Five months after the law passed, Bush covertly issued a legal opinion effectively declaring that provision null and void. Deputy assistant attorney general Steven Bradbury declared that “such interference [by Congress] is impermissible.” Sen. Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee, denounced Bush’s action as “unconstitutional” and “a dictatorial, after-the-fact pronouncement by him in line with a lot of other cherry-picking he’s done on the signing statements.” But Bush’s action was largely ignored by the media. And his Civil Liberties Board certainly did not even whimper.
When Bush lagged in appointing members to the restructured board, Sen. Joe Lieberman, chairman of the Senate Homeland Security Committee, urged him in 2008 to move quickly “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.” Lieberman wanted to preserve “the public’s faith” at the same time he championed “enhanced interrogation” methods and retroactive immunity for any company or person who violated Americans’ rights in the name of antiterrorism. (The Senate did not confirm any of Bush’s belated nominations.)
Change You Can Forget About
During his presidential campaign Barack Obama vigorously criticized Bush’s civil liberties abuses. Many of his supporters expected that, if elected, Obama would radically change federal policies regarding American liberty.
As of this past October, Obama had made no appointments to the oversight board. Rep. Bennie Thompson, then chairman of the House Homeland Security Committee, and Rep. Jane Harman, then chairman of that panel’s subcommittee on intelligence, wrote Obama early last year urging him to speedily make appointments because “we believe that the Board will give an anxious public confidence that appropriate rights are respected.” Harman is best known as the sponsor of the Violent Radicalization and Homegrown Terrorism Prevention Act, which could have spurred massive crackdowns on libertarians, constitutionalists, and others with nonmainstream ideas.
Many newspaper editorials have also complained about Obama’s failure to stock the oversight board. But this is perhaps the most honest action the Obama administration has taken regarding civil liberties. In area after area Obama has rubber-stamped Bush-era abuses and signaled that there would be no investigation or prosecution of official wrongdoers from the previous administration. Obama is also embracing Bush-style State-secrecy doctrines that prohibit disclosure of the rationale for U.S. government-planned assassinations of Americans.
The oversight board is far more likely to induce complacency than to protect liberty. Since 9/11, trampling the Constitution is a no-fault offense. In Washington nowadays, only “extremists” believe that federal officials should be jailed for violating citizens’ privacy.
For every member of Congress such as Rep. Ron Paul (R-Tex.), who vigorously and consistently opposes federal abuses, there are vanloads of congressmen cheering federal agents’ trampling the statute book in the name of public safety. The founders intended Congress to be a vigorous check on the abuses of the executive branch. However, few members of Congress have the gumption to pursue official lawbreakers or to fight to expose agencies’ crime sprees. In the 1970s, senators like Sam Ervin (D-N.C.) and Frank Church (D-Id.) spearheaded probes into executive-branch abuses, revolutionizing how Americans thought about the president, the CIA, and the FBI. Ervin and Church succeeded in part because of sheer willpower. But there is little or no such courage in Washington nowadays.
Washington vastly prefers the appearance of checks and balances to the reality of government under law. At a time when federal officials who violate Americans’ rights have nothing to fear from Uncle Sam, the existence of the oversight board is a cruel taunt to private citizens.
Perhaps the best epithet for the feds’ civil liberties record is the saying of Lily Tomlin: “No matter how cynical you become, it’s never enough to keep up.” “I’m from the government, and I’m here to safeguard your privacy” is the post-9/11 version of the old joke. But American liberty cannot afford any more sham protections. Abolishing the oversight board would be the most honest step Washington has taken on civil liberties in this century.