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Help Wanted: Oversight Over $60 Billion Security Establishment

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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March 31, 2010

(Originally posted on Daily Kos.)

Never before in history has the United States had such a huge, and increasingly powerful security establishment. This behemoth has tens of thousands of employees and a budget of at least $60 billion, and though first established to protect our country from outside threats, it is increasingly turning its eye inward upon the people of America. It is vital that we have strong checks and balances in place to counterbalance this growing, secretive center of government power. Unfortunately, in many ways Congress has been weakening, rather than strengthening, those checks and balances in recent years.

But in 2007, Congress did create one little-noticed, but significant new institution for protecting American liberty: an independent Privacy and Civil Liberties Oversight Board (PCLOB). The PCLOB, as I wrote about in this report on privacy oversight, does not quite have all the powers it should have, but it will provide a significant and badly needed dose of oversight for our vast national security establishment.

There’s only one problem: President Obama hasn’t appointed anyone to fill the five seats on the PCLOB.

After Congress created the new PCLOB (not to be confused with the old PCLOB, which was an arm of the White House and lacked independence) in 2007, President George W. Bush refused to nominate one of the candidates put forth by leaders in Congress, who traditionally select the commissioners from the opposite party from the president. In retaliation, the Senate refused to confirm any of Bush’s GOP nominees.

Once President Obama came into office, we figured, that particular standoff would end and we would see the board filled. Right? Wrong. There’s no longer any standoff with Congress — just a complete lack of action by the White House. In November 2009, the ACLU and other groups asked Obama (PDF) to take action. On March 1, 2010, we sent a second letter (PDF). On March 8, Senate Judiciary Chairman Patrick Leahy sent a similar letter (PDF). And just yesterday, 22 members of the House of Representatives sent a similar letter (PDF) to the president.

So far, the new PCLOB still exists only on paper.

Has President Obama been kinda busy since he was inaugurated a year ago January? Yes. And we have been patient about the PCLOB as a result. But take a look at just a few of the positions that the president has found (PDF) the time (PDF) to fill since coming into office 14 months ago:

  • The Ronald Reagan Centennial Commission. The appointment of five members was announced on Nov. 9, 2009.
  • The U.S. Commission for the Preservation of America’s Heritage Abroad. Two members’ appointments announced on Nov. 10, 2009.
  • The President’s Advisory Council on Faith-Based and Neighborhood Partnerships. Nine people appointed on April 6, 2009.
  • International Boundary and Water Commission, United States and Mexico. Commissioner appointed on Jan. 15, 2010.
  • The Marine Mammal Commission. Vacancy filled on Jan. 19, 2010.
  • American Battle Monuments Commission. Secretary appointed on May 21, 2009.
  • District of Columbia Judicial Nomination Commission. Vacancy filled on March 2, 2010.
  • The President’s Commission on White House Fellowships. Twenty-eight people named on June 17, 2009.
  • Federal Service Impasses Panel. Six people named on Sept. 14, 2009.
  • The President’s Committee on the Arts and Humanities. Three people named on Sept. 16, 2009.
  • The Commission To Study the Potential Creation of a National Museum of the American Latino. Five members named on Sept. 23, 2009.

And the list goes on and on.

The point is not that these panels and commissions are unimportant; many of them surely are. But few address an issue as core to American freedom as does the PCLOB.

It could be argued that a lot of these positions were easier to fill than the PCLOB precisely because they might not be as important. Well, maybe. But it has been 14 months. More likely, this White House, like any White House, has no appetite for activating an independent body not under its control, a potential thorn in its side that might step on their “message of the day” and distract from its agenda.

That’s just too bad; independent oversight is painful. And President Obama took an oath to “faithfully execute” the laws of the United States. Congress has passed the PCLOB into law. Time for some faithful executing, Mr. President.

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