In the weeks since former National Security Agency contractor Edward Snowden exposed government spying into millions of Americans’ phone calls and e-mails, the Obama administration has reassured the public that there are restraints on U.S. espionage. One check against Washington’s vast counterterrorism efforts is supposed to be the Privacy and Civil Liberties Oversight Board. In a June 17 interview with Charlie Rose, the president said, “I’ll be meeting with them, and what I want to do is to set up and structure a national conversation” about privacy.
The board is staffed with five presidential appointees who get top secret security clearances and, in theory, the power to shape both legislation and regulations to assure that espionage undertaken in the name of the Patriot Act or the Foreign Intelligence Surveillance Act doesn’t trample on the public’s privacy rights. That’s how the 9/11 Commission, which proposed the board in 2004, envisioned it would work.
Hamstrung by Congress and ignored by two presidents, the board has been powerless. After neglecting it during his first term, Obama met with board members for the first time on June 21. They never weighed in on the NSA’s Prism program, and had they tried, it’s questionable whether the board would have gotten very far. Its recommendations aren’t binding; the White House, spy agencies, and lawmakers aren’t required to take its advice. And its mandate is virtually impossible to carry out: It’s supposed to tell the public if the government’s secret programs are overreaching, yet it can’t reveal any classified details.
The board has been essentially dormant for more than seven of its nearly nine years. After signing the Intelligence Reform and Terrorism Prevention Act that created it in December 2004, President George W. Bush took six months to nominate a chair and vice chair. It was nine more months before Congress confirmed them.
The panel began meeting in March 2006, but it took a year for members to get organized, says former Chairwoman Carol Dinkins, who was a deputy attorney general in the Reagan administration. “We had to get ourselves introduced to and known by the top people in the intelligence community,” Dinkins says. “That took a lot of effort.” The chair, who currently earns $165,300, is the only full-time member.
Because Congress had placed the board in the executive branch and made it subject to White House oversight, the Bush administration could insert itself into its business. Recalls Lanny Davis, a former special counsel to President Bill Clinton who served on the board, “We couldn’t put out a press statement without getting clearance from the White House press secretary.” In early 2007 the members began drafting their first report for Congress, a cursory rundown of who the board had met with. It offered no policy prescriptions. The administration made edits on all but five pages of the 42-page document, prompting Davis to resign in protest over what he considered political meddling.
Dinkins says she and her colleagues carried on for several months without Davis, but that the panel was disbanded in the fall of 2007 after Congress yanked it from White House control and made it an independent agency similar to the Federal Communications Commission. The president would still get to pick the members, but they would no longer answer to him. The Senate would get to confirm all five nominees, instead of just the chair and vice chair.
The maneuver was supposed to breathe new life into the board. Instead, the White House and Congress couldn’t agree on its members. Although Bush submitted five names, the Democrat-led Senate sat on them. For the last year of Bush’s presidency, the panel had no members. “I was disappointed that the board was abolished, and I am disappointed that it was not re-created and up and functioning sooner,” says Dinkins.
The panel has fared no better under Obama. He didn’t begin nominating members until he’d been in office for two years, and even then he submitted an incomplete slate. It wasn’t until both parties began pushing bills to boost the country’s cybersecurity that Obama and Senate Republicans worked to fill out the board in an effort to overcome objections from companies and privacy advocates. In August 2012, the Senate confirmed all of Obama’s nominees except the chairman, David Medine, an attorney who’s worked for the Consumer Financial Protection Bureau, the Securities and Exchange Commission, and is a partner at WilmerHale. Medine finally obtained the Senate’s blessing on May 29—eight days before Snowden’s leaks became public.
The board’s been revived, but it’s not clear whether it will have real authority. By law it’s supposed to “have access” to information from federal agencies, including classified data, and it can request interviews with officials. Yet there aren’t any penalties if agencies don’t cooperate. And unlike Congress, the board lacks subpoena power. “Will it be able to derive useful insights that can either correct surveillance policy or else assure the public that the policy is sound?” asks Steven Aftergood, who directs the Federation of American Scientists’ Project on Government Secrecy, a nonpartisan group that advocates for more transparency in government.
Then there’s the question of what the board, which is supposed to represent the public, will be able to tell the public. Since Medine was sworn in, the agency has met three times—in secret. Medine says the board will “diligently look into” the spying programs and whether they’re in the public interest. He’s aiming for the board to “be as transparent as possible” and has scheduled a public meeting for July 9. Thomas Kean, the former chairman of the 9/11 Commission who pushed for the board’s creation, says it’s about time. “Frankly, our idea was that the meetings should be open,” he says. “What they should be worried about is civil liberties, and that’s not something they should be keeping secret.”