10 Years Later, 9/11 Commission Says President Is Failing to Protect Civil Liberties

The 9/11 Commission released a 10-year report card on the recommendations they made back in 2004. And one of three recommendations that remains entirely unfulfilled–the only one that is entirely the responsibility of the executive branch–is implementing a board to defend civil liberties.

“[T]here should be a board within the executive branch to oversee adherence to the [privacy] guidelines we recommend and the commitment the government makes to defend our civil liberties.”

An array of security-related policies and programs present significant privacy and civil liberty concerns. In particular, as the FBI and the rest of the intelligence community have dramatically expanded their surveillance of potential terrorists, they have used tools such as National Security Letters that may implicate the privacy of Americans. Privacy protections are also important in cyber security where the government must work with the private sector to prevent attacks that could disrupt information technology systems and critical infrastructure. The same Internet that contains private correspondence and personal information can also be used as a conduit for devastating cyber attacks.

To ensure that privacy and liberty concerns are addressed, the 9/11 Commission recommended creating a Privacy and Civil Liberties Oversight Board to monitor actions across the government. Congress and the president enacted legislation to establish this Board but it has, in fact, been dormant for more than three years.

Describing the PCLOB as “dormant” is actually a huge favor to Obama. It only suggests, but does not make explicit, that before the end of his Administration Bush actually got around to rolling out the PCLOB–evenven if it was so compromised by executive branch control that Lanny Davis felt obliged to resign.

But Obama has avoided even that much oversight by simply letting the PCLOB go unfilled for his entire Presidency. As the report card explains, Obama finally got around to making nominations after Democrats lost the numbers in the Senate to approve his nominees (though one was the Michael Mukasey Assistant Attorney General who rolled out greater investigative powers for the FBI). And even if those two were by some freakish even confirmed, PCLOB would still be short a quorum to do any work.

The Obama administration recently nominated two members for the Board, but they have not yet been confirmed by the Senate. We take the administration at its word that this Board is important: in its May 2009 review of cyber security policy, the administration noted the Board’s importance for evaluating cyber security policies. We urge the president to appoint individuals for the remaining three positions on the board, including the chairman, immediately, and for the Senate to evaluate their nominations expeditiously.

[snip]

If we were issuing grades, the implementation of this recommendation would receive a failing mark. A robust and visible Board can help reassure Americans that these programs are designed and executed with the preservation of our core values in mind. Board review can also give national security officials an extra degree of assurance that their efforts will not be perceived later as violating civil liberties.

PCLOB is an entity mandated by law. But the President refuses to comply with that law to provide for some oversight over civil liberties, no matter how inadequate.

It’s not me accusing Obama of failure on this point–it’s a bipartisan commission primarily concerned with the national security of the country. But they are, in fact, calling him a failure.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

35 replies
  1. rugger9 says:

    The board isn’t populated because no one in the Beltway wants it, really, just those who the Villagers consider the DFHs. As a practical reason, at some point a citizen would ping the board about some violation or another of the Constitution which would risk opening cans of worms all over town.

    Candidate Obama rightly blasted Bu$hco for dragging their feet on this. What’s President Obama’s excuse?

  2. Bob Schacht says:

    But…but appointing such an oversight board would have them Looking Backwards, and we’re looking forward!

    [/s] I seem to recall an old study that found that people who are lost tend to move in a circle. ISTM, Obama is acting like he’s lost, and what with Karma being a Bi*ch and all, we can expect him to wind up at the beginning on this.

    Bob in AZ

  3. DWBartoo says:

    @nomolos:

    Ah, nomolos,

    So THAT is what the phrase being “in deep poo poo” actually means?

    The bird in of “proof”

    leaves the vestige of twoof …

    As little birdies, up in the sky,

    drop some whitewash in our eye …

    Ain’t we lucky that bulls don’t fly?

    DW

  4. earlofhuntingdon says:

    Nothing says collapse into imperial rule like a president giving the Bronx cheer to a commission meant to advocate civil rights – and to track those actions by government that threaten them.

  5. Cregan says:

    The most interesting thing I learned from this is that the 9/11 Commission is still operational. Who knew?

  6. rugger9 says:

    I’ve seen management styles that declare things are OK unless proven otherwise, which usually fall apart as the system gets gamed. Same thing here. Obama and his handlers [see: Plouffe’s latest] seem to think there isn’t a problem here because no one has complained, but they aren’t listening either.

    The question for us is whether we are willing to take 4 more years of this vs. a viable alternative, key word “viable”. No one in the current or media-blessed potential GOP field is, Petraeus [who I am still saying is the target of AmericaSelect ™ if not the HypocriticalOP in their convention] won’t be better either, actually worse. However P is still not yet tarnished by the baggage he carries around, and would be perceived as apolitical.

    Assuming we know who will emerge to challenge Obama in 2012 is dangerous, wait until Super Tuesday. Apparently the Obama handlers think they hold the cards, just like Poppy did at this time before the 1992 election.

    In this case, the AmericaSelect ™ game is another astroturf operation designed in this case to split the Ds.

  7. allan says:

    … and also failing to protect from bio-warfare agents.

    Reinventing Project BioShield (Science, subscrip. req.):

    n the wake of the fall 2001 anthrax letter attacks, protecting against future bioterrorism attacks became a top priority for the U.S. government, resulting in the creation of Project BioShield. This effort was intended to make available effective vaccines and treatments against agents like anthrax, botulinum toxin, Ebola, and plague. Yet to this day, the Strategic National Stockpile—a repository of medicines for use in a public health emergency—has no doses of a next-generation anthrax vaccine, nor any vaccines or drugs to defend against Ebola or plague….

  8. rugger9 says:

    @allan:
    They still haven’t announced who really did Amerithrax. The case against Ivins has fallen apart, as it did against Hatfill.

  9. newz4all says:

    Joseph E. Stiglitz : The Price of 9/11

    The September 11, 2001, attacks by Al Qaeda were meant to harm the United States, and they did, but in ways that Osama bin Laden probably never imagined. President George W. Bush’s response to the attacks compromised America’s basic principles, undermined its economy, and weakened its security.

    Al Qaeda, while not conquered, no longer appears to be the threat that loomed so large in the wake of the 9/11 attacks. But the price paid in getting to this point, in the US and elsewhere, has been enormous – and mostly avoidable. The legacy will be with us for a long time.

    http://www.project-syndicate.org/commentary/stiglitz142/English

  10. Cregan says:

    @newz4all:

    That is an interesting viewpoint, with some reason behind it.

    But, imagine this.

    You know the great disruption and fear that occurred after the attacks. You know the legislation that followed it.

    Let us say that another similar attack followed on the heels of the first one, maybe 3 months or 6 months or even a year following.

    Let your mind run over the clamor to REALLY clamp down that would have happened. And, the exponentially heightened fear.

    THAT would have been something we would have had great difficulty recovering from.

    We will recover from the liberties cut back over the near term. Just like after the internment of WWII did not stay as a permanent fixture.

    But, if someone had not done something quickly and another attack occurred, you would have had people stampeding each other to enact really harsh policies.

    At the time, Al Queda didn’t care how many of our liberties were restricted or not. They didn’t care if we went down with all liberties intact or some liberties intact. As long as we went down by any means.

    lucky for us, they didn’t succeed.

  11. Bob Schacht says:

    Civil liberties have been sacrificed to “keep us safe.” Ben Franklin is spinning in his grave. We are entering the world of “Minority Report”: law enforcement is shifting focus from “crimes committed” to “intention to commit crimes”, which seems to include bad thoughts.

    Actually, I think Osama bin Laden has won. The assault on the World Trade Center was just a small part of his strategy. He wanted to contort America with fear so that we would destroy *ourselves*. Or maybe he didn’t originally plan to do that, but when he saw it happening, I’m sure he was delighted. We are now in a self-destructive spiral. All Al Qaeda has to do is pop up somewhere every now and then, yell “Death to the infidels!” and then quickly disappear into hiding.

    As Walt Kelly once put it in his Pogo comic strip, “We have met the enemy, and he is us.”

    Bob in AZ

  12. P J Evans says:

    @Cregan:
    Sorry to disappoint you, but they did succeed.
    We have politicians, and ‘reporters’, who are happy to expand surveillance on anyone they don’t like, and justify every restriction as part of the ‘War on Terrorism’.

  13. ezdidit says:

    Domestic surveillance is the only part of the national security agenda that our electeds care about. They have not ignored the Arab spring. And Obama is merely one of them. He has proven this time and again, over and over again, and still we are led to think that if we elect a Democrat rather than a Republican then things will get better. They will improve, but only as a result of a declining birthrate. There simply is no other justification nor rationalization for lower long term debt other than lower population. Austerity is the dismal leading edge.

  14. barne says:

    How sure are we that Obama isn’t a good, smart man, doing what he has to do in light of the vast amount of intel that he has access to now?

    • bmaz says:

      Maybe you have a different definition of “what he has to do”. Did he “have to” order indefinite detention without due process, order extrajudicial execution of American citizens, hang his best nominees out to dry and embarrass them, shit on homeowners in favor of banksters, put a justice without a lick of legal experience on the Supreme Court, violate the WPR and Constitution with an illegal war in Libya. That’s just getting started. You going to tell me there were not better, more proper and more legal options on all those? Really?

  15. Larue says:

    Most replies above tore this one apart, along with Mz. Wheeler’s diary.

    I got nuttin to add but thanks for all the info folks.

    We’re phooked comin n goin. N we know it.

    N now we fight back.

  16. barne says:

    I’m thinking about the forces which Obama might be up against, and who he might believe are within striking distance of taking down democracy in America. Even if I could learn as much as you have, I still don’t have the capacity to think it through as well as you, so I’m not saying you’re wrong. I’m just saying, man, there are some scary authoritarian forces circling around here, and maybe Obama is doing what he feels he must to to preserve some semblance of democracy. Under Bush, I really felt like we were heading down hard, and I’m still hoping that Obama and team represent a rescue of some kind.

  17. barne says:

    That was a reply to bmaz, btw. Idea being, if Obama plumbs these depths, he’s either seen some scary intel about enemies foreign and/or domestic, or he’s kind of a sham.

    • bmaz says:

      Barne, I do not disagree with much, if any, of that. Honestly, I don’t think the “scary authoritarian forces” and “sham” are mutually exclusive. In fact, probably little question that both are involved. I can accept a reasonable helping of the forces, that is the nature of the gig; it is the sham part that has completely soured me. Not that I have any idea of what to do in the alternative; we are clearly headed for an election pitting the same old horrid crappy versus even worse bat shit insane. It is tiring.

  18. Duncan says:

    Barne, I don’t buy it. (And since Obama is a marketer, recognized as such by his peers, “buy” is the correct word.) For one thing, why not extend the same gull … I mean empathy to George W. Bush, who struggled vainly against the scary authoritarian force that is Dick Cheney? If we are really in such danger from terrorists and other Mooslims, then we should praise Dubya for staring into the abyss and bravely leading America through the War on Terror, instead of making fun of the way he says “nuclear.” To say nothing of Cheney himself. If not for that Daring Duo, Osama Bin Laden would be running this country right now!!!!!!

    I’m old enough to remember when much the same defense was made of LBJ’s policy in Vietnam: if we only knew the secret intelligence that the President sees, we’d understand why he *had* to do what he did. But that was false, as we now know for certain, and we knew quite well even at the time. There’s enough evidence now that Obama lies constantly about his crimes, that I don’t believe things are any different in his case. He might be a good man, but he’s doing awful things, and what he does is more important than what he is.

    The old Little-Father-misled-by-the-Evil-Boyar is a flag of self-deception, and of deceiving others.

  19. Duncan says:

    One other point. I can understand why people living in dictatorships lack the courage to struggle for change; I have no reason to believe I’d be any braver in their shoes. But while I sympathize with them, my respect and admiration is reserved for those people who refuse to collaborate and submit, at the risk of their safety and even their lives.

    So if Obama really were being intimidated by scary authoritarian forces, I’d sympathize with him. But I’d have no respect for him. My respect goes to the people who oppose him and what he is doing. After all, most of us risk no more than being derided by Obama’s Press Secretary as the “professional left.” My admiration goes to people like those who are being prosecuted for exposing Obama’s and Bush’s dirty secrets. If Bradley Manning did turn over those documents to Wikileaks (as I presume he did), he’s a hero; Obama is merely a person without honor,and a congenital cheap pig.

  20. Cregan says:

    @P J Evans:

    It is interesting. You are thinking of moving from a 5,000 acre country estate with castle to a 100 acre gentleman’s farm.

    They are thinking of moving you to a cardboard box in a dump surrounded by a swamp filled with cow dung.

    Until then, they don’t think they have any kind of victory.

    (though, they’re heading for the same cardboard box themselves instead)

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