Bush's Bait and Switch with Civil Liberties

After the release of the 9/11 report, President Bush created a civil liberties commission. Good news? Not exactly. It appears Bush has pulled a bait and switch. Richard Ben-Venistem a member of the Commission and Lance Cole, a law professor and consultant to the 9/11 commission, write in the New York Times:

Since the attacks on the World Trade Center and the Pentagon, the government has acquired powerful new legal tools, including those provided by the Patriot Act, to collect intelligence on Americans. Government agencies are using "data mining" and other techniques to identify potential terrorists and cut off sources of terrorist financing. As the commission's report noted, the shift of power and authority to government must be tempered by an enhanced system of checks and balances to protect the personal liberties that define our way of life.

One of the ways the commission sought to balance these competing objectives was to recommend the creation of a board within the executive branch to protect civil liberties and privacy rights. Unfortunately, the board created by the president has neither the right makeup nor the right powers to accomplish this objective.

Bush's board is fundamentally defective, beginning with its composition.

All its members are from within government and almost all are from the very agencies and departments whose actions are likely to be the subject of civil liberties challenges and complaints. The 9/11 commission demonstrated the value of a review of government actions by disinterested individuals from outside government. Only outsiders can supply both the independence and the skepticism that are essential to evaluate the merits of governmental assertions of power that intrude on personal privacy.

The board's members have no expertise in addressing civil liberties violations outside the terrorism field--for example, where the Patriot Act is being used to investigate computer hacking or corruption unrelated to terrorism.

Bush's board is not non-partisan.

The president's panel is made up almost entirely of presidential appointees and senior staff members who serve presidential appointees. A far better model would be a board that is chosen through an appointments process that provides not only balance along party lines, but also participation by both the executive and legislative branches. For example, a nine-member board could be created with a requirement that no more than five of its members be from the same political party. The chairman and vice chairman could be required to come from different parties. What's more, the president's nominees would be subject to Senate confirmation. This is similar to the model that has been shown to work well for independent regulatory agencies.

Next, Bush's board has no accountability because it is advisory only.

While the commission recommended a board that would provide oversight, the president's board is only an advisory board, which means that it will simply provide advice and information. It has no obligation to disclose its findings to the public. For such a board to be effective, it .... should be required to provide quarterly reports of its findings to Congress and the public. As the 9/11 commission showed with its report, it is possible to remove references to sources and methods of intelligence collection and still provide an informative public accounting.

Bush's board also fails to assign someone to assess and bring complaints:

[It needs] a kind of "civil liberties ombudsman" who would be responsible for bringing complaints and challenges before the board. The individuals in those positions must have full access to the surveillance techniques and domestic intelligence collection practices their departments and agencies employ. There must also be confidentiality and whistleblower protections to ensure that complaints are reported without fear of reprisal.

The ACLU has labeled the board an example of "the fox guarding the henhouse."

Despite the president’s laudable attention to these matters, the board as proposed would be comprised only of the government officials it is meant to oversee, would have no investigative authority and would be utterly beholden to the White House.

Bush's board is cosmetic only. Congress should make the necessary changes to the Board to make it effective and closer to that envisioned and recommended by the 9/11 panel.

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