Civil liberties board has yet to get off the ground

During the Senate Judiciary Committee's confirmation hearings this week, senators focused on Judge Samuel Alito's views on the limits of presidential power. But pending before the committee are two other nominations that could have a more immediate effect on the balance between civil liberties and executive power.

Back in June, President Bush nominated Carol Dinkins as chairwoman and Alan Raul as vice chairman of the new Privacy and Civil Liberties Oversight Board, a five-member panel established by the 2004 intelligence reform bill that Bush signed into law 13 months ago. The Judiciary Committee held a nomination hearing for Dinkins and Raul in November, but it postponed further action on confirmation amid end-of-year congressional business and the Alito hearings.

If confirmed, the two nominees will oversee a unique experiment in executive power-balancing. The board, whose members serve part-time, will be part of the White House, with a full-time executive director and a $1.5 million annual budget.

It will be responsible for reviewing some of the most sensitive programs in the federal government, such as the National Security Agency's wiretapping of U.S. citizens' international phone calls, the Homeland Security Department's opening of inbound international mail, the department's screening of airline passengers, and the limits of secrecy and torture in government prisons.

The board's members will serve at the pleasure of the president and will have to clear some of their work with the attorney general -- yet they are also expected to report to Congress and to serve as a check on the president's power.

"We must protect the country from those who would destroy us. But on the other hand, we can't give up or give short shrift to what makes this such a special nation," Dinkins said at the confirmation hearing. "These are things that require careful balancing. They require a great deal of back-and-forth to make sure the tension is properly resolved, so that we do not sacrifice our civil liberties while we are fighting those who wish to destroy us."

Some critics say that the board, even when it does get off the ground, will likely be only a weak voice in defense of civil liberties. "I want to give the president the power to do his job, but I want to make sure that with more power comes more oversight," says Rep. Christopher Shays, R-Conn., who pressed for the panel to have subpoena power and greater autonomy.

The board is the result of a struggle between congressional overseers and the White House. The 9/11 commission's July 2004 report called for a board "within the executive branch" to oversee "the commitment the government makes to defend our civil liberties."

The Bush administration initially proposed a group composed of existing administration officials, but lawmakers pushed the commission's recommendation for a more independent panel. The two sides struck a compromise, placing a board of nongovernment officials in the Executive Office of the President but requiring it to send reports to Congress.

The 2004 intelligence reform bill charges the board with reviewing executive branch policies, regulations, information-sharing practices, and programs to ensure that they protect privacy and civil liberties. The board is to advise the president and executive agency heads on ways to balance those citizen rights with national security demands. Members will have security clearances, and they will be authorized to request information from executive branch officials.

The attorney general will have the final say over whether officials must comply with the board's recommendations, however, and the law does not require officials to check with the board before implementing policies that may infringe on civil liberties.

The administration initially proposed an annual budget for the board of $750,000, but a bipartisan push from lawmakers doubled that amount in the 2006 White House appropriations bill. Even so, the American Civil Liberties Union and some members of Congress say the board doesn't have enough money to effectively oversee programs across the entire executive branch, from the Transportation Security Administration to the National Security Agency to the CIA.

Critics also contend that the board, to be effective, should have subpoena power and should reside outside of the president's office. Moreover, Shays and others are annoyed that the board still hasn't convened, 13 months after President Bush signed the intelligence reform bill. "It's really disgraceful that it's not in operation, that it doesn't have much of a budget, that the present board is weak, and that it can't do the kind of grunt work it needs to do," Shays said.

Dinkins, the nominated chairwoman, is an environmental lawyer with a Houston law firm who served as deputy attorney general under President Reagan; she also was the campaign treasurer for Bush's 1994 Texas gubernatorial campaign. Sen. Patrick Leahy, D-Vt., has questioned her qualifications.

Alan Raul, nominated as vice chairman, is a lawyer and has written a book on privacy concerns. The other appointments, which don't require Senate confirmation, include two other lawyers: Lanny Davis, a former Clinton White House adviser and Democratic National Committee member, and Theodore Olson, the Bush administration's former solicitor general.

The fifth member is Francis Taylor, former counter-terrorism chief at the State Department who is now the chief security officer for General Electric. The board won't convene until the Senate confirms Dinkins and Raul.

The intelligence bill calls for board members to be qualified "on the basis of achievement, experience, and independence." Asked if someone who has served in the current administration can be considered independent, Olson responded in an e-mail: " 'Independence' is a rather subjective concept, and I will leave it to others to decide whether I qualify."

Rep. Carolyn Maloney, D-N.Y., a proponent of a more autonomous board, criticized the administration's appointees. "If you look at the people they did appoint," she said, "it's clear they're not taking this seriously."

Dinkins said that even when she and Raul are confirmed, they will need time to get the board up and running. Her first orders of business, she said, will be to appoint an executive director, seek detailees from other agencies, obtain office space, consult with people about how the board should operate, and establish operating procedures. "It will be quite a challenge," Dinkins said, "because the board does not currently exist."

Critics, while decrying the board's lack of power and independence, are most bothered that it has yet to meet at a time when news reports are bringing to light the administration's moves to implement Bush's expansive view of executive powers. Jerry Berman, president of the Center for Democracy and Technology, a Washington-based privacy advocacy group, said, "I want to see the oversight board in operation."