NYTimes: How to Watch the Watchers

[Dave Farber <dave () farber net>]

. Forwarded Message .......
From: Bob Rosenberg <bob () bobrosenberg phoenix az us>
To: dave () farber net
Date: Tue, 07 Sep 2004 04:50:28 -0700
Subj: NYTimes: How to Watch the Watchers

Dave

Why does anyone wonder why some of us are concerned about our civil rights?

Bob

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OP-ED CONTRIBUTOR
How to Watch the Watchers
By RICHARD BEN-VENISTE and LANCE COLE

The president's new civil liberties oversight board falls short of the
recommendations made by the 9/11 commission.

http://www.nytimes.com/2004/09/07/opinion/07benveniste.html?th

--

Bob Rosenberg, Principal
R.G. Rosenberg & Assoc.
Public Policy
 Consulting & Advocacy
P.O. Box 33023
Phoenix, AZ  85067-3023
LandLine:  602-274-3012
Mobile:  602-206-2856
bob () bobrosenberg phoenix az us


"A free society is one where it is safe to be unpopular."
    --Adlai Stevenson

************************

NYTimes OP-ED CONTRIBUTOR
How to Watch the Watchers
By RICHARD BEN-VENISTE and LANCE COLE

Published: September 7, 2004

Last week President Bush issued four executive orders addressing matters
that were subjects of recommendations by the 9/11 commission. One of the
four orders created a President's Board on Safeguarding Americans' Civil
Liberties. While it is laudable that a civil liberties board was
included in the first set of presidential actions in response to the
commission's recommendations, the new board falls short of addressing
the concerns that led the commission to recommend the creation of a
meaningful oversight board in the first place.

Since the attacks on the World Trade Center and the Pentagon, the
government has acquired powerful new legal tools, including those
provided by the Patriot Act, to collect intelligence on Americans.
Government agencies are using "data mining" and other techniques to
identify potential terrorists and cut off sources of terrorist
financing. As the commission's report noted, the shift of power and
authority to government must be tempered by an enhanced system of checks
and balances to protect the personal liberties that define our way of life.

One of the ways the commission sought to balance these competing
objectives was to recommend the creation of a board within the executive
branch to protect civil liberties and privacy rights. Unfortunately, the
board created by the president has neither the right makeup nor the
right powers to accomplish this objective.

For starters, the large size of the president's board is a problem. With
20 or more people, individual members won't feel personally accountable
or responsible, a fatal flaw for an effective civil liberties oversight
body.

But a more fundamental problem with the president's panel is the people
who will serve on it. All its members are from within government and
almost all are from the very agencies and departments whose actions are
likely to be the subject of civil liberties challenges and complaints.
The 9/11 commission demonstrated the value of a review of government
actions by disinterested individuals from outside government. Only
outsiders can supply both the independence and the skepticism that are
essential to evaluate the merits of governmental assertions of power
that intrude on personal privacy.

In fact, the president's board seems especially unlikely to prevent one
of the most serious potential problems brought on by the government's
new powers - the possibility of applying them in areas that have nothing
to do with terrorism. Already, the Patriot Act has been used to
investigate official corruption, money-laundering and computer hacking.

A properly functioning civil liberties oversight board should also be
nonpartisan, and the way to achieve that is through a balanced
appointments process. The president's panel is made up almost entirely
of presidential appointees and senior staff members who serve
presidential appointees. But the public must have confidence that the
board transcends the partisan interests of whatever administration is in
power.

A far better model would be a board that is chosen through an
appointments process that provides not only balance along party lines,
but also participation by both the executive and legislative branches.
For example, a nine-member board could be created with a requirement
that no more than five of its members be from the same political party.
The chairman and vice chairman could be required to come from different
parties. What's more, the president's nominees would be subject to
Senate confirmation. This is similar to the model that has been shown to
work well for independent regulatory agencies.

There's another problem. While the commission recommended a board that
would provide oversight, the president's board is only an advisory
board, which means that it will simply provide advice and information.
It has no obligation to disclose its findings to the public. That's a
mistake. For such a board to be effective, it must be transparent. To
that end, any panel should be required to provide quarterly reports of
its findings to Congress and the public. As the 9/11 commission showed
with its report, it is possible to remove references to sources and
methods of intelligence collection and still provide an informative
public accounting.

In addition to the specifics set out in the commission report, there's
another step that should be considered: departments and agencies that
have responsibility for domestic intelligence collection and homeland
security should put in place a kind of "civil liberties ombudsman" who
would be responsible for bringing complaints and challenges before the
board. The individuals in those positions must have full access to the
surveillance techniques and domestic intelligence collection practices
their departments and agencies employ. There must also be
confidentiality and whistleblower protections to ensure that complaints
are reported without fear of reprisal.

While the president's proposal is a welcome acknowledgment of the need
for civil liberties protections, it seems that it will now be up to
Congress to carry out the commission's recommendation for a genuine,
effective oversight board. Only a truly independent board with real
powers can help strike the right balance between enhanced powers to
combat terrorism and adequate protection of our cherished civil liberties.


Richard Ben-Veniste, a lawyer, is a former member of the 9/11
commission. Lance Cole, a professor at Penn State Dickinson School of
Law, is a former consultant to the commission.

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