Privacy Guardian Is Still a Paper Tiger

Times Staff Writer

For Americans troubled by the prospect of federal agents eavesdropping on their phone conversations or combing through their Internet records, there is good news: A little-known board exists in the White House whose purpose is to ensure that privacy and civil liberties are protected in the fight against terrorism.

Someday, it might actually meet.

Initially proposed by the bipartisan commission that investigated the attacks of Sept. 11, 2001, the Privacy and Civil Liberties Oversight Board was created by the intelligence overhaul that President Bush signed into law in December 2004.

More than a year later, it exists only on paper.

Foot-dragging, debate over its budget and powers, and concern over the qualifications of some of its members -- one was treasurer of Bush’s first campaign for Texas governor -- has kept the board from doing a single day of work.


On Thursday, after months of delay, the Senate Judiciary Committee took a first step toward standing up the fledgling watchdog, approving the two lawyers Bush nominated to lead the panel. But it may take months before the board is up and running and doing much serious work.

Critics say the inaction shows the administration is just going through the motions when it comes to civil liberties.

“They have stalled in giving the board adequate funding. They have stalled in making appointments,” said Rep. Carolyn B. Maloney (D-N.Y.). “It is apparent they are not taking this seriously.”

The Sept. 11 commission also has expressed reservations about the commitment to the liberties panel.

“We felt it was absolutely vital,” said Thomas H. Kean, the Republican former governor of New Jersey who led the commission. “We had certainly hoped it would have been up and running a long time ago.”

The inaction is especially noteworthy in light of recent events. Some Republicans joined Democrats to delay renewal of the anti-terrorism Patriot Act because of civil liberties concerns. And the disclosure in December that Bush approved surveillance of certain U.S. residents’ international communications without a court order has caused bipartisan dismay in Congress.

“Obviously, civil liberties issues are critically important, and they have been to this president, especially after 9/11,” said White House spokeswoman Dana Perino, adding that the White House had moved expeditiously to establish the board. “We do not formally nominate until we are through the background investigation and the full vetting. It takes time to present those nominations to the Senate. But now that they have been confirmed, that is a good thing.”

The board chairwoman is Carol E. Dinkins, a Houston lawyer who was a Justice Department official in the Reagan administration. A longtime friend of the Bush family, she was the treasurer of George W. Bush’s first campaign for governor of Texas, in 1994, and co-chair of Lawyers for Bush-Cheney, which recruited Republican lawyers to handle legal battles after the November 2004 election.

Dinkins, a longtime partner in the Houston law firm of Vinson & Elkins, where Atty. Gen. Alberto R. Gonzales once was a partner, has specialized in defending oil and gas companies in environmental lawsuits.

Foremost among her credentials, she told Senate Judiciary Committee members in a response to their questions, was the two years she spent as deputy attorney general in President Reagan’s Justice Department. There, she said, she had to weigh civil liberties concerns while overseeing domestic surveillance and counter-intelligence cases.

The board vice chairman is Alan Charles Raul, a Washington lawyer who first suggested the concept of a civil liberties panel in an opinion article in the Los Angeles Times in December 2001. Raul, a former Agriculture Department general counsel currently in private practice, has published a book on privacy and the digital age and is the only panel member with apparent expertise in civil liberties issues.

The panel’s lone Democrat, Lanny J. Davis, has known Bush since the two were undergraduates at Yale. Civil liberties groups regard the Washington lawyer, who worked in the Clinton White House, as likely to be a progressive voice on the panel.

The board also includes a conservative Republican legal icon, Washington lawyer and former Bush Solicitor General Theodore B. Olson, whose wife, Barbara, died in the Sept. 11 attacks. The fifth member is Francis X. Taylor, a retired Air Force general and former State Department counter-terrorism coordinator, who is chief security officer at General Electric Co.

The board members declined to comment for this article. Three referred calls to Dinkins, who referred calls to the White House.

The idea of such a watchdog agency was broached almost immediately after the Sept. 11 attacks, as conservatives and liberals alike saw a need for the government to consider the implications of new and growing anti-terrorism measures.

The idea was to have professionals ask hard questions about whether the government was going too far in collecting and disseminating information about suspected terrorists, and to have those professionals make their views known in regular reports to the president.

The board was given a broad mandate to review the civil liberties effects of proposed regulations and executive branch policies related to the war on terrorism. It will report to Bush.

The law gives the panel access to classified information under certain circumstances, but not the power to subpoena documents. The board, which is within the Executive Office of the president, operates at the behest of the administration.

Civil liberties groups saw it as a promising first step.

“The board has the potential to be an important force in protecting civil liberties if the White House gives the board a role in the policymaking process, as Congress intended,” the Center for Democracy and Technology, a Washington advocacy group, wrote at the time the law was passed.

So far, that potential has not been realized.

The Bush administration waited nine months to send the nominations of Dinkins and Raul to the Senate for approval. The three other members of the board did not require Senate confirmation, but they could not function without a chairman.

Doubts about funding also developed. The administration proposed an initial budget of $750,000, which lawmakers doubled. But critics consider that far from adequate. A similar board in the Homeland Security Department was initially proposed to have a $13-million budget.

Some members of Congress are concerned that the administration may still be trying to shortchange the board.

The fiscal 2007 budget that the administration released this month includes no express mention of any funding for it. That triggered a letter of protest from Maloney and Rep. Christopher Shays (R-Conn.) to the Office of Management and Budget.

A spokesman for the office, Scott Milburn, said in an interview that money was being requested for the board, but he declined to say how much.

Congress, which championed the idea of the board, also dragged its heels. Dinkins and Raul were officially nominated in September, when the Senate Judiciary Committee was busy with a Supreme Court nomination. The panel held a confirmation hearing in November, but only two of the 18 members showed up.

The committee finally approved Dinkins and Raul on Thursday without discussion. Judiciary Committee Chairman Arlen Specter (R-Pa.) said his panel moved as quickly as possible considering its other duties, such as Supreme Court nominations, and considering the time the White House took in sending the nominations to the panel.

The top Judiciary Committee Democrat, Richard J. Durbin of Illinois, said in an interview: “They seem to be good people. They have done good things in their lives. But they certainly don’t bring any special expertise to what I consider to be an extremely challenging position.”

But Durbin said he believed the board could still be a valuable addition to the debate over security and liberty as concern over the growing power of government after Sept. 11 cuts across ideological lines.

Dinkins asserted in her written responses to the Senate committee that the board would not be a pushover for the administration.

“The president will be best served if the board offers unvarnished and candid advice concerning whether counter-terrorism policies are developed with adequate consideration of privacy and civil liberties,” she wrote. “It is critical that ... the board get up and running as quickly as possible.”