Suppose Congress created a board to protect the privacy of Americans and no one showed up. That's the bizarre reality of the five-member Privacy and Civil Liberties Oversight Board, all of whose five seats have been vacant since 2008. Rep. Jane Harman (D-Venice) is pressing the Obama administration to fill the vacancies. In doing so, the president should choose individuals of sufficient experience and stature to act as watchdogs over the intelligence community and the Justice Department.
The board was originally established by Congress in 2004 and was raised to the status of an independent agency within the executive branch in 2007. Its mandate is to advise the administration when anti-terrorism policies threaten to trample civil liberties, and it has access to both public and classified information. It's meant to complement, not replace, congressional oversight and investigations by the inspectors general of the Justice Department and the CIA. It also makes an annual report to Congress — or would, if it were reconstituted with new appointments.
Although it was the George W. Bush administration that inaugurated the illegal wiretapping of Americans suspected of being in contact with foreign terrorists, invasions of privacy are a constant danger in any intelligence program empowered to collect and scrutinize the personal and electronic records of U.S. citizens. The Privacy and Civil Liberties Oversight Board is designed to help protect against abuses in advance so that we don't have to conduct inquests after the fact.
Appropriately, anti-terrorism measures constantly are being refined to address new challenges. In a letter to Obama, Harman and Rep. Bennie Thompson (D-Miss.), chairman of the House Homeland Security Committee, cite policy changes proposed after the attempted destruction of an airliner on Christmas, including expanded watch lists and increased use of body-scanning technology at airports.
It would be naïve to think that the board always will prevail in its recommendations to Congress or the administration. Nor is it the only brake on ill-considered or legally dubious anti-terrorism initiatives. In addition to various inspectors general, the Justice Department's Office of Legal Counsel is supposed to advise the administration and federal agencies of the legal limits on counter-intelligence operations and other tactics in the war on terrorism.
Stung by criticism of its inaction, the administration insists that it is considering candidates for the three Democratic seats on the board and expects congressional Republicans to recommend nominees for the other two seats soon. Better late than never, but the empty seats at the table more than a year into the Obama administration are an embarrassment.