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Small But Significant Privacy Oversight Institution Almost a Reality After Pathetic Story of Delay

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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February 28, 2013

(Updated below)

The Senate Judiciary Committee today approved president Obama’s nominee, David Medine, as chair of the Privacy and Civil Liberties Oversight Board. With this step, we are on the cusp of finally seeing this important oversight body brought into full existence.

As new technologies emerge faster than ever, it’s vital to have a genuinely independent oversight body helping to make sure our liberties are protected (see here and here for prior posts on the PCLOB, and a 2009 report on privacy oversight). The PCLOB is a significant and much needed addition to the highly inadequate oversight structures currently overseeing our out-of-control national security establishment.

However, assuming that it does soon come into full existence, it’s worth noting that it will start life as an almost comically tiny body. Some quick facts and figures:

U.S. intelligence/national security establishment


Budget (millions)

Paid staff

(The staff figure includes only those holding security clearances; the total number of employees in the intelligence community is therefore certainly much higher, and the total number employed by the larger national security state as a whole far higher still. The figure includes contractors. The budgetary figure includes both the national and military intelligence budgets and is from 2010.)

Despite the mouse-versus-elephant disparity in scale between the PCLOB and the security establishment it is charged with overseeing, the path to its creation is a pathetic story of foot-dragging and delay. That painfully long road reflects not only the extreme partisan gridlock of the times, but also a distinct lack of will within the executive branch to stand up a truly independent oversight body that could risk making the administration look bad, as well as the Bush and Obama administrations’ general deference to the interests of the national security establishment over checks and balances and civil liberties protections.

Here’s a quick review of what it’s taken to get us to this point (a fuller history can be found in this report from the Congressional Research Service):

July 2004

9/11 Commission recommends establishment of a board to oversee adherence to the protection of civil liberties.

December 2004

A version of the PCLOB is established as an agency within the White House.

May 2005

A bipartisan group of Senators writes to the White House complaining of delays in constituting the board.

June 2005

Bush names 5 members to White House PCLOB.

May 2007

Democratic member Lanny Davis resigns from the board after White House censors a report that the board had unanimously approved.

August 2007

Congress reconstitutes the PCLOB as a new, 5-person independent agency.

February 2008

President Bush nominates 3 Republican members, but refuses to nominate the 2 Democratic candidates put forth, in accordance with tradition, by Democratic Senate leaders. In retaliation, the Senate refuses to confirm Bush’s nominees.

January 2009

Bush leaves office, President Obama enters office, removing source of partisan standoff over nominees.

March 2010

With no nominations forthcoming 14 months into Obama’s term, 22 members of Congress write to Obama asking him to “immediately nominate qualified individuals” to the board.

December 2010

Obama nominates two members to board.

April 2011

Three Senators write to Obama expressing their “deep concern about the lack of a functioning” PCLOB.

December 2011

Obama nominates three more members to board.

August 2012

Senate confirms four members, but not the chair.

February 2013

Obama issues executive order directing Homeland Security officials to consult with the PCLOB in evaluating interagency cybersecurity information sharing.

February 2013

Senate Judiciary Committee approves David Medine as chair, moves nomination to full Senate.

Update 2/28

This post was updated to incorporate newer staffing and more complete budgetary figures.

Update 5/7

After yet another delay of more than two months, Medine was confirmed by the Senate on May 7.

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