When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration's indifference to the subject.
But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to nominate a single person to sit on the five-person board. It has no members, no staff, and no office.
Until now, the reaction to all this from the same civil-liberties groups and Democrats that bashed Bush has been largely muted. But that is starting to change. "I'm appalled," said Sharon Bradford Franklin, senior counsel of the Constitution Project, a legal-affairs advocacy group that has usually been aligned with the Obama administration.
This week, Franklin's group and more than 20 other civil-liberties and privacy groups—including a few with Republican ties—sent a letter to the White House urging that civil-liberties board members be appointed "without delay." That follows two similar letters from Democratic representatives Jane Harman, who chairs a subcommittee on terrorism, and Bennie Thompson, chairman of the House Homeland Security Committee—one in October and another more recently in late January, both of which have gone unanswered.
All the letters noted there would be no shortage of issues for a civil-liberties oversight board to investigate, ranging from the impact of Patriot Act reauthorization proposals to the administration's plans to install body scanners and other new security measures at airports. And then there's the mounting controversies over new technologies, such as the Justice Department's expanding collection of cell-phone tracking data gathered surreptitiously.
But when she recently raised the issue of the vacant board with Denis McDonough, one of the president's top national-security advisers, Harman said the response she got back was "nothing," just "we're working on it."
Ben LaBolt, a White House spokesman, reaffirmed a previous statement from the White House more than a month ago that the president will nominate members "soon." But he declined to specify how soon. "The president is committed to constituting the Privacy and Civil Liberties Oversight Board," he said.
But others are getting skeptical. According to Franklin, nobody at any of the civil-liberties groups that signed off on this week's letter is aware of anybody even being contacted by White House personnel about accepting such a job. Another leading civil-liberties activist (who asked not to be identified because of political sensitivities) said he suspects top White House officials like chief of staff Rahm Emanuel are reluctant to staff a board that can only give them political grief.
An earlier version of the civil-liberties board, created by a White House executive order in order to fulfill one of the recommendations of the 9/11 commission, was later criticized for being a lap dog for the Bush administration. As a result, the Democratic Congress, when it passed the 2007 legislation, insisted that the newly authorized panel be an independent agency with full subpoena powers to investigate executive branch actions. It also wrote into law that the chairman be a full-time position, making it difficult for any White House to find anyone of stature to take the job if he or she was not going to have real powers—and access.
All this may explain the White House's slowness in filling the positions on the board. But it doesn't fully explain the relative indifference of political Washington. "What seemed so imperative under Bush has just dropped off the radar screen," laments Alan Charles Raul, who served as vice chairman of the earlier Bush civil-liberties advisory board. Now, he says, "No one seems to care."