Lost in the shuffle of last weekend's build-up to the Republican Convention and the close of the Summer Olympics was a surprising announcement by President Bush on a topic his administration has largely ignored – civil liberties.
Echoing a recommendation of the 9/11 Commission, the president issued an executive order establishing the "President's Board on Safeguarding Americans' Civil Liberties," the first announced effort by this administration to address civil liberties across the federal government.
Unfortunately, this executive order is too little, too late. It uses an institutional structure that is designed to fail, and is no substitute for bipartisan legislation being considered by Congress.
The 9/11 Commission Report called for a significant institutional commitment to civil liberties issues. The Commission found that "there is no office within the government whose job it is to look across the government at the actions we are taking to protect ourselves to ensure that liberty concerns are appropriately considered." It said, "There should be a voice within the executive branch for those concerns."
The Commission therefore concluded, in its formal recommendations, that "there should be a board within the executive branch to oversee adherence to the guidelines we recommend and the commitment the government makes to defend our civil liberties."
At first glance, the Bush approach seems to respond to the Commission's recommendations. It does create a "board" that is "within the executive branch." The "board" is permitted to recommend "guidelines" to the president and make referrals for violations of law relating to those guidelines.
Even a slightly closer look, however, shows the weakness of the new board. To begin with, the executive order creates no "office" within the executive branch whose job, day in and day out, is to work on the issues of civil liberties and information privacy. Instead, staffing will come from an existing official who reports to the deputy attorney general. It is hard to imagine how this official, placed somewhere within the Department of Justice, will oversee policy and compliance in other federal agencies.
The structure of the board is also stacked against civil liberties. The chair will be the deputy attorney general, who traditionally plays a lead role in crime fighting. The vice-chair will be the under secretary for border and transportation security in the Department of Homeland Security, who oversees border control and immigration enforcement.
Putting enforcement officials in charge of civil liberties creates an inherent conflict of interest. As Supreme Court Justice Lewis Powell wrote in a case involving national security wiretaps: "It is, or should be, an important working part of our machinery of government … to check the well-intentioned but mistakenly over-zealous executive officers who are a party of any system of law enforcement." The new board ignores this wisdom, and every initiative to protect civil liberties will be overseen by officials whose primary duty is enforcement.
Proposals currently being discussed in Congress show better ways to create the Civil Liberties Board recommended by the 9/11 Commission. Sen. Susan Collins has called on her Government Affairs Committee to draft legislation this fall to implement the Commission's recommendations. Senators including John McCain and Joe Lieberman have been working on how to implement the Civil Liberties Board recommendation.
This congressional action deserves support. One key to a successful board will be accountability to congressional oversight. The board should include individuals whose positions are created by statute, to ensure that they can be called to testify before Congress. To further assist oversight, Congress can require the board to issue an annual report. That way, if the board does nothing, then it will be painfully apparent to everyone.
For the board to influence policy as it is being developed, my own view is that it should be in the Executive Office of the President, and not off in one agency such as the Department of Justice. Many issues of information sharing and the war on terrorism involve multiple agencies. From my experience in the Clinton administration, being part of the White House complex is essential for getting the attention of multiple agencies. Indeed, the lack of a White House presence on privacy and civil liberties has been a notable failing of this administration.
There are also much better ways to fulfill the 9/11 Commission's call for the board to "oversee adherence" to laws and policies. The Bush executive order on the surface seems to promote adherence, by saying that the board shall refer information about legal violations to the appropriate agencies. The catch is that this sort of referral is already required by current law, as the order itself acknowledges in a citation to the U.S. Code that most readers would overlook.
In order to improve adherence, one idea is to have the inspector general in each agency name a person to a coordinating committee chaired by the leader of the new Civil Liberties Board. This government-wide effort would go beyond the traditional audit function of the inspector generals, to promote compliance with law and protection of individual rights.
In sum, the 9/11 Commission Report voices a bipartisan understanding that new institutions to protect privacy and civil liberties should accompany new initiatives in the war on terror. The executive order issued last week does not meet that standard and is designed to fail. Legislation being crafted now in Congress can do much better.
Peter Swire is professor of law at the Ohio State University. From 1999 to early 2001, he served as chief counselor for privacy in the U.S. Office of Management and Budget.