We’ve Been Without PCLOB Since Before Trump Took Office. That Is A Problem

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Right after 9/11, Congress and the Bush Administration got busy creating new laws, programs and bureaucracies they claimed were necessary to protect the “homeland:”  the Patriot Act, NSEERS, the Department of Homeland Security (including Fusion Centers and ICE). And that’s just what they did openly. We now know that there was plenty going on in secret, from torture and renditions to expanded warrantless spying.

Members of the 9/11 Commission were smart enough to understand that these programs would threaten privacy and civil liberties, so they recommended the creation of a Privacy and Civil Liberties Oversight Board (PCLOB) to review federal counterterrorism programs to ensure they include safeguards to protect privacy and civil liberties.  Congress enacted legislation in 2007 to create the PCLOB, but it took another five years for the agency to come into existence.

Unfortunately though, the PCLOB has not had a quorum of members to allow it to conduct business since before Trump took office. For over 19 months, there has not been an agency to provide independent oversight of how the Trump administration is carrying out counterterrorism programs to ensure privacy and civil liberties are protected.

That’s a huge problem.

So DRAD has joined with 30 other civil society organizations to call on the Senate Judiciary Committee to consider the nominations of the two people (one Democrat, one Republican) Trump has nominated so the PCLOB will have a quorum and be able to continue its important work. [Read the letter here]

These nominations are not in the same category as the slew of problematic nominees for federal judgeships, the Supreme Court or high-level administration positions. By statute, the PCLOB is required to be bipartisan board ideally with five members, but three members constitutes quorum. Members are nominated by the President and confirmed by the Senate. Civil liberties advocates have had to continuously pressure Presidents to nominate, and the Senate to approve, board members. [Disclaimer, one of the inaugural PCLOB members, James X. Dempsey, served on our Board of Directors for many years.]

The PCLOB was operational for just over four years during the Obama administration, but during that time it played a valuable role, including conducting a review of the Section 215 program and bringing to light critical details about government surveillance programs.

The PCLOB is not a cure-all, it cannot single-handedly conduct oversight over the many counterterrorism programs operated by the Intelligence Community and other federal agencies, but the agency’s mission is a critical one. Jake Laperruque at the Constitution Project at the Project on Government Oversight has created a to-do list for the PCLOB, including to investigate and report on targeting of and disproportionate impact of surveillance on religious minorities and people of color.

There is no reason the Senate Judiciary Committee can not do its job and consider the nominees, Travis LeBlanc and Aditya Bamzai (one Republican, one Democrat) so that the PCLOB can do its job.