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Obama keeps privacy oversight board on ice

Even though a 2007 law requires the president to appoint members of an independent privacy board "in a timely manner," he still has failed to do so despite continued pressure from Congress.

As a U.S. senator and presidential candidate, Barack Obama pledged (PDF) to "strengthen privacy protections for the digital age."

But after 16 months as president, Obama has failed to appoint anyone to a privacy oversight body charged with ensuring Americans' civil liberties are not violated.

Rep. Jane Harman, the California Democrat who heads the Homeland Security committee, on Thursday called on the administration "to appoint the Privacy and Civil Liberties Oversight Board, which is mandated by the 2004 intelligence reform law, and which has not been filled."

The 2007 law expanding the board's responsibilities requires Obama to appoint members "in a timely manner." But its drafters included no penalties--the possibility must have been inconceivable--if the president chooses to ignore the law's requirement.

While appointing members may seem like a mere exercise in bureaucracy, creating the oversight board was a key part of Congress' attempts to rewrite federal intelligence law by implementing the recommendations of the 9/11 Commission that created a quasi-independent privacy agency.

The Privacy and Civil Liberties Oversight Board is intended to be involved in creating data-sharing "fusion centers"; it is supposed to approve the training intelligence analysts assigned to the centers receive; it is charged with reviewing "actions the executive branch takes to protect the nation from terrorism" and preparing public reports every six months.

More importantly, it has the power to compel government agencies to turn over documents or be interviewed about their actions. The board is explicitly granted access to "all relevant records, reports, audits, reviews, documents...or other relevant material, including classified information" held by the executive branch, and it has the power to send subpoenas to companies and individuals demanding they testify or turn over information.

(Aside for conspiracy theorists: that power is broad enough to let this board get to the bottom of those nagging questions about UFOs. Of course, if the board doesn't have members, it can't do much.)

If the president appointed members to the board, Harman said in a hearing on Thursday, "I think that would go a long way toward making sure that all the practices we're talking about by fusion centers and new regulations and proposed legal remedies comply fully with our Constitution." (An earlier version of the board was seen as ineffective.)

President Bush's nominations to the board were blocked by Senate Democrats. The Obama administration has been saying for months it is committed to filling the vacant seats but has not said when it will happen.

In March, about two dozen House members including prominent Democrats sent Obama a letter (PDF) to Obama saying nominations should happen "immediately."

Caryn Wagner, Homeland Security's undersecretary for intelligence and analysis, said during Thursday's hearing said the agency was sensitive to civil liberties when putting together plans to follow "some of these homegrown violent extremists."

"So we're doing this hand-in-glove with our civil rights, civil liberties, and privacy officers from the beginning to ensure that whatever we put in place is consistent (with) civil liberties," Wagner said. But she never addressed the missing members of the Privacy and Civil Liberties Oversight Board.