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Civil Liberties Oversight Board Still Dormant

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November 29, 2011
Steven Aftergood
Secrecy News Blog
fas.org/blog/secrecy

The Privacy and Civil Liberties Oversight Board that was supposed to provide independent oversight of U.S. counterterrorism policies remains dormant and out of service because its members have still not been named and confirmed.

In a report that was newly updated this month, the Congressional Research Service traced the origins of the Board from a recommendation by the 9/11 Commission through its initial establishment as a White House agency to its reconstitution as an independent agency chartered by statute in 2007.

The Board was assigned two overriding missions: It was supposed to “analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties”; and to “ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”

So had the Board been functional, it might have been a valuable participant in current deliberations over military detention authority, for example. It might also have conducted investigative oversight into any number of other counterterrorism policies, as mandated by law. But for all practical purposes, there is no Board.

Last January, President Obama named Elisebeth C. Cook and James X. Dempsey to serve on the Board. The Senate has not acted on their nomination. Even if they had been confirmed, however, they would not have constituted a quorum. Thus, the Board’s activation is still dependent on presidential nomination of additional Board members. See “Privacy and Civil Liberties Oversight Board: New Independent Agency Status,” November 14, 2011.


From the Report
Summary:

Recommended by the National Commission on Terrorist Attacks Upon the United States (9/11
Commission), the Privacy and Civil Liberties Oversight Board (PCLOB) was initially established as an agency within the Executive Office of the President (EOP) in 2004. Critics, however, maintained that the board appeared to be a presidential appendage, devoid of the capability to exercise independent judgment and assessment or to provide impartial findings and recommendations. This viewpoint gained acceptance in the 110th Congress when the PCLOB was reconstituted as an independent agency within the executive branch by the Implementing Recommendations of the 9/11 Commission Act (IR9/11CA), signed into law on August 6, 2007. On January 5, 2011, President Obama nominated two people to serve on the board, but the Senate has not confirmed either. This report will be updated as events warrant.