< Managing Oversight

Transcript

Friday, February 08, 2008

BOB GARFIELD:
The Privacy and Civil Liberties Oversight Board was formed in the spring of 2006, one of many recommendations by the 9/11 Commission. Despite calls for an independent body, the Republican Congress placed the board in the executive office of the President, meaning the board would be appointed by Bush and serve at his pleasure.

This was, however, no pleasure at all to civil liberties advocates. Lisa Graves is deputy director of the Center for National Security Studies, and she believes the board’s second annual report, published a little more than a week ago, is less a check on government power than a rubber stamp. It’s no surprise, she says, given some of the board’s members.
LISA GRAVES:
To paraphrase Justice Scalia, five people picked at random out of any phone book would have done a better job in protecting civil liberties. The chairperson of the board, Carol Dinkins, is a long-time friend of the Bushes. She was a Bush appointee in Texas. She was in the Reagan Administration. She was also in the ABA and was the person who helped shepherd through the high ratings of Bush’s controversial judicial nominees in the first term of this president.
BOB GARFIELD:
The ABA, the American Bar Association.
LISA GRAVES:
Yes. So she is a known partisan.
BOB GARFIELD:
And former Solicitor General Ted Olson.
LISA GRAVES:
Mr. Olson obviously was instrumental in Bush v. Gore; later served as the Solicitor General of the United States in the Bush Justice Department. Overall, he is known as a defender of the president.

Mr. Alan Raul, who is a respected lawyer in Washington, D.C., is also someone who served in the Reagan Administration in the Associate White House Counsel’s office during Iran-Contra. And while he has a private practice involving giving advice to digital companies about privacy and technology matters, he certainly doesn't have a record of being a civil libertarian.
BOB GARFIELD:
So these [LAUGHS] very vigilant watchdogs convened and held exactly one public meeting in December of 2006. What happened there?
LISA GRAVES:
At that meeting, I asked the board to share with the American people the number of Americans who'd been subject to the warrantless wiretapping that the board had given its blessing to. They refused. And they refused to let the press ask any questions at this only public meeting.
BOB GARFIELD:
Now, shortly after that nominally public meeting the board issued its first of two annual reports. Can you tell me what kind of oversight the Oversight Board evinced in those reports?
LISA GRAVES:
I would say that they evinced a hand-in-glove relationship with the White House. The first report indicated the board’s favorable disposition toward the warrantless wiretapping of the president that is plainly in violation of the Foreign Intelligence Surveillance Act.

And they basically took the White House line almost throughout the entire document in terms of saying any controversial policy had sufficient internal controls and people shouldn't be worried about their civil liberties or privacy.
BOB GARFIELD:
Now, in fairness, we should note that the board has raised a couple of issues with the way the administration has gone about its business, one involving the National Security Letters, which permit federal authorities to do warrantless searches.
LISA GRAVES:
You’re right. But I would say that the criticism was mild. And, in fact, in the case of the National Security Letters, which have been extremely controversial because they allow the FBI to access any American’s financial records, phone records or Internet records without any court oversight, there was an Inspector General audit that was ordered by Congress that revealed widespread misuse and abuse of National Security Letters. And so the FBI admitted that it made severe mistakes.

In this final report of the Board, the Board criticizes the FBI for making those mistakes but then provides a roadmap to the FBI for how to do a better P.R. job in defending National Security Letters, which is really a bit astonishing.
BOB GARFIELD:
Now, in the category of good news/bad news jokes, I guess the good news is that this toothless Oversight Board is no longer functioning and the bad news is that this Oversight Board [LAUGHS] is no longer functioning. The original five members saw their terms expire in January and they have not been replaced.
LISA GRAVES:
That's right. Actually, one of the board members, the only Democrat on the five-person board, resigned in the midst of the first report because the first report was heavily edited by the White House.

So for the bulk of last year, there were only four members, all of whom have records of service in the Bush Administration or the prior Bush Administration. And that board ceased to exist this January because Congress, under Democratic control, decided to take the Board out of the Executive Office of the White House, where it never should have been, and have it be an independent executive branch agency.

Knowing that that was coming, the White House did not act quickly and hasn't submitted any nominations. I think this White House has very little interest in having a board that has any independence - although, at the end of the day, a board is no substitute for an aggressive and informed vigorous oversight process by Congress in which Congress is not intimidated by the word terrorism, where Congress is an equal player in our political system and demands that the law and the rule of law be followed.
BOB GARFIELD:
All right, Lisa. Thank you very much.
LISA GRAVES:
Thank you so much for having me on.
BOB GARFIELD:
Lisa Graves is deputy director of the Center for National Security Studies.