Nonexistent board with no new powers or responsibilities

In theory, the Privacy and Civil Liberties Oversight Board is an independent watchdog that makes sure national intelligence efforts against terrorism don't infringe on people's privacy and civil liberties. The key phrase is, "in theory.”

In practice, the board does not exist. It doesn't have any confirmed members and can't have a meeting.

As a candidate, Barack Obama said he would strengthen the board with subpoena powers and reporting responsibilities. The board came out of recommendations from the 9/11 Commission. A law passed in 2007 mandated that the board would be bipartisan, an independent agency within the executive branch and would have five members. President George W. Bush nominated members to the board in 2008, but the Senate never confirmed them.

That left President Obama with the task of appointing the new board.  

Sharon Bradford Franklin, senior counsel at the Constitution Project, said Obama's efforts to establish and strengthen the board were "very discouraging to say the least … He clearly did not make this the kind of priority we would have hoped.”

Obama announced two nominees in December 2010, but waited another year for the final three. Before then, he hadn't nominated enough people to constitute a quorum -- in other words, it couldn't have conducted business. The Senate Judiciary Committee approved the nominees in May, but as of this writing, the Senate has yet to vote on them.

Kara Carscaden, a spokeswoman for the Obama campaign, blamed Senate Republicans for slowing down the nomination process by blocking the president's nominees.

We find that's a stretch. Although it's true that all eight Republicans on the Senate Judiciary Committee voted against David Medine -- slated to be the board's chairman -- they weren't successful in blocking his nomination. And we've seen nothing from the White House that indicates Obama made a significant effort to get the board up and running before December 2011.

Chris Calabrese, legislative counsel at the American Civil Liberties Union, said that with the Obama administration's late nominations, "you're not strengthening (the board), but weakening it and hollowing it out.”

"The most relevant thing is that this nomination took three years to happen,” Calabrese said. "It only happened in an election year, essentially.”

During his campaign, Obama said he would give the board subpoena powers. Under current law, the board relies on the Attorney General to issue subpoenas for people's records. The board has to submit a written request -- which can be modified or denied by the Attorney General. If the board had direct subpoena power, it might improve the efficiency and ease of investigations, Calabrese said.

The board already has the power to request records from departments, agencies and other parts of the executive branch. In that case, if the board does not receive the desired documents, it would lodge a complaint with the head of the department or agency.

As for reporting responsibilities, the 2007 law requires that the board testify before Congress on request and submit at least semi-annual reports to a variety of congressional committees. As with subpoena powers, we didn't find any sign that this had changed.

To review, we found no evidence that the Obama administration pushed for new subpoena powers or reporting responsibilities. As Calabrese said, such efforts would be "nonsensical” since the board has no members or staff. We consider a nonexistent board with no additional subpoena powers or reporting responsibilities a Promise Broken.