How White House is thwarting privacy board

While the beat of the GOP’s FISA j’accuse campaign goes on, a deafening tick-tock has emerged.

As reported in The Hill, if FISA overhaul legislation isn’t passed by Memorial Day — a prospect that would likely give House Majority Leader Steny Hoyer (D-Md.) a fit — then the intelligence community will have to craft dozens of individual surveillance warrants. While House Republicans and the White House continue their demands for consideration of Senate-passed FISA legislation, they are clearly poised to hang the stalemate, and its repercussions, on the necks of House Democrats.

With the punishing and inescapable force of the election season, the ominous question is just how much will the new FISA bill resemble the legislation signed into law last summer, widely criticized for exchanging the protection of American citizens from domestic surveillance for the unchecked authority of the executive branch.

And as this goes on, an oversight board created for this exact purpose has been long out of commission. The Privacy and Civil Liberties Oversight Board, a specific recommendation of the 9/11 Commission, has not been functional since Jan. 30, when the terms of its previous members expired.

But more importantly, the White House has stalled the confirmation of the board’s nominees by not providing the Senate Judiciary Committee with necessary background documents in order to forward the process.

This is, however, just one star amidst the constellation of obstacles that the Bush White House has erected, all seemingly done for the purpose of rendering the privacy board virtually and actually ineffective.

In calling for a significant overhaul of the U.S. intelligence infrastructure, the 9/11 Commission had recognized the need for an oversight body that operated inside the executive branch to “oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties.” That recommendation would find its way into the 2004 intelligence reform bill and in the birth of the privacy board.

In addition to being charged with evaluating proposed legislation and advising the president on civil liberties and privacy matters, the board’s central importance would be rooted in its oversight responsibilities, which included reviewing the actions of executive branch agencies and reporting its findings to Congress.

However, this version of the board emerged as more appendage than check, as it wasn’t ensured compliance from executive agencies for information requests, was reportedly denied funding and lacked independent subpoena power.

The desire to give the board its otherwise absent teeth emerged when Democrats took over Congress, and when the House, in passing its version of the 9/11 recommendations bill, looked to provide the board explicit independence and subpoena power.

As the bill moved to the Senate, however, the White House opposed the subpoena provision.

According to a Senate source, as a compromise measure to ensure passage, subpoena power would be vested in the hands of the Attorney General’s office, hardly the paragon of autonomy during the course of this presidency.

While agency cooperation was ensured in the final bill, this would rely on a board finding that information was “unreasonably withheld” — a questionable prospect given the administration’s choice of board members, which included Ted Olson, the former solicitor general who successfully argued Bush v. Gore on behalf of the president, and Carol Dinkins, the board’s chair who was appointed to multiple positions by the president going back to his days as Texas governor.

The best assessment of the board’s characteristic incapacity comes from Tom Kean, the 9/11 Commission chairman, who stated last month that “the board raised no objection to detention and interrogation practices and warrantless wiretapping, and its report was edited by the White House.”

If all of this offends you, then I could probably anticipate your response, but to relegate this to the tired prism of the administration’s religious conviction in the unitary presidency misses the greater point.

A potent, independent board would not only aid the White House in effectively confronting security threats, but it could have also lent real credence to the message that this administration has lost the credibility to claim: that our safety is in fact threatened by the combination of stateless and conscienceless actors and massively destructive weapons capability.

The thing I find most odd about all of this is that for a man who is seemingly unnerved by the most daunting of challenges, President Bush clearly skirted the quintessential challenge of our generation, to draw the roadmap that leads to the preservation of our rights in the post-Sept. 11 age, opting for the ease of dominion over the difficulty of balance.

Not since Lincoln will a presidency become so defined by the state of individual rights he will leave behind. The struggle over FISA, and for that matter the privacy board, will be the president’s final opportunity to embrace the challenge he has chosen to ignore and, in significant measure, reverse the descending trajectory of his legacy.

Meanwhile, we should all wonder when we’ll hear a separate tick-tock for an oversight board that Kean simply labeled “missing in action.”

Mikhail is a former staff writer for The Hill.