In an executive order issued on Friday night, President Bush responded to a key 9/11 commission recommendation by creating a civil liberties board composed of high-level government officials tasked with making sure their agencies' programs do not violate privacy and civil rights laws.
Civil liberties advocates blasted the board, comparing it to the proverbial "fox guarding the hen house," and questioned how it could be effective without outside appointees and independent investigative powers.
The President's Board on Safeguarding Americans' Civil Liberties will be housed in the Justice Department and led by the Deputy Attorney General James Comey and the Department of Homeland Security's Under Secretary for Border and Transportation Security Asa Hutchinson.
Other members include officials from the Central Intelligence Agency, the National Security Agency, the Terrorist Threat Integration Center and the Pentagon, along with privacy officials such as Homeland Security's chief privacy officer, Nuala O'Connor Kelly.
The board's official duties include advising the president on civil liberties, helping craft policy, requesting reports from federal agencies and reviewing a specific agency program when invited to do so by the agency in charge of that policy. The board could not initiate investigations on its own, however, and the order makes no mention of reports to the public.
Lara Flint, a lawyer for the Center for Democracy and Technology -- a centrist civil liberties group known for working closely with Congress -- found little of value in the proposal.
"This is not what a civil liberties board should look like if it is intended to be robust, effective and independent," Flint said. "It is made up of people who need civil liberties oversight."
The CDT and others have been working with senators turning the 9/11 commission recommendations into legislative language in order to create a civil liberties board with investigative powers and the ability to have "input in the areas where it really needs it, which is where the law is ambiguous or there is no law," Flint said.
Charlie Mitchell, legislative counsel for the American Civil Liberties Union, argues the president's board could even be counterproductive. "This could be worse than useless because it creates a board with no real power, no real authority and no independence, and then they get to sign off on programs being OK for civil liberties," Mitchell said. "This is an attempt to head off a board with real authority."
If Congress does adopt legislation creating an independent commission or set of commissions, it would complement, not abolish, the president's board. Marc Rotenberg, executive director of the Electronic Privacy Information Center, thinks the board looks less like an independent commission than an interagency task force advising the president.
Such a task force might not be a bad thing, given the hits the Bush administration has taken over antiterrorism proposals such as the Total Information Awareness program, the TIPS program and CAPPS II, according to Rotenberg.
"The good news here is that there obviously (is) a concern about civil liberties, and this board brings together high-level officials to think about it," Rotenberg said. "The bad news is there is no mechanism in place to make sure they will get the job done."
The White House did not respond to a request for comment.
