A particularly valuable recommendation by the 9/11 Commission was government creation of a board that would monitor the state of our civil liberties in the war on terror. The commission, however, did not indicate it had in mind the administration's official Privacy and Civil Liberties Oversight Board established two years ago. It has no subpoena powers and must obtain the permission of Attorney General Alberto Gonzales — a key bulwark of secrecy in this administration — to obtain documents. And four of this phantom board's five members are Republicans.
It took two more years for this phantom board to hold its first public hearing last Dec. 5. There its sole Democratic member, attorney Lanny Davis — previously known for his fairness — said in answer to criticisms of the board's lack of independence:
"Congress put us in the office of the president, we didn't. Had Congress wanted us to be an incensement agency, it would have made us independent."
Then why did Davis accept the president's nomination of him to sit on this "guardian" civil-liberties board constructed of papier-mache? He has since said, however, that he would be receptive to legislation to make the board a more credible watchdog.
At the public hearing, this modern version of a Potemkin village — fake structures ordered by the Russian czars — was exposed crisply by David Keene, chairman of the American Conservative Union. Keene has proved consistently — as in his concerns with the Patriot Act — that classic conservatives can coexist with across-the-board civil libertarians.
"A president's good intentions," said David Keene, as reported in the Dec. 6 Newsday, "do not put him above the law. We continue to be troubled by the argument that a president has no obligation — because of the inherent-powers doctrine — to follow the law or respect other constitutional guarantees whenever he invokes national security as justification."
Accordingly, since this Privacy and Civil Liberties Board is, indeed, as Lanny Davis says, in the very Office of the President — who is a true believer in the sweeping powers of "the unitary executive" — how much confidence can we have in it?
In the new Congress, Reps. Carolyn Maloney, D-N.Y., and Christopher Shays, R-Conn., are likely to reintroduce legislation to make this oversight board live up to its name. As Maloney said on FoxNews.com:
"The current board doesn't have the power or independence to examine the protection of our civil liberties in an effective or timely fashion. They basically operate at the whim of the White House."
If this legislation by her and Shays passes Congress, I would not be surprised if Vice President Dick Cheney, a persistent guardian of "unitary executive" powers, advises the president to veto the bill. But maybe the president will consult Keene before he provides more material for Jay Leno's monologue on NBC's "Tonight" show.
The president's staff might also show him a Dec. 13 Washington Post report on a poll by that newspaper and ABC News that shows "a continued public skepticism about whether the government is adequately protecting privacy rights as it conducts terrorism-related investigations."
Quoted was terrorism expert Bruce Hoffman, a professor in the Security Studies program at Georgetown University, who, the Post reported, "said the poll results could spell trouble for the FBI and other government agencies as they continue to seek support for expanded anti-terrorism powers granted after the Sept. 11, 2001, attacks."
In the article, Hoffman said, "I don't think you can view these polling results in isolation from an overall phenomenon, which is that people are more skeptical of the government's conduct of the war on terrorism."
Recently, entering Riverside Drive in upper Manhattan, I saw out of the car window a striking electronic sign that demanded: "Report Suspicious Activity." It gave a phone number to call, but no definition of "suspicious activity."
The insistent sign recalled for me an article by Paul McMasters, the First Amendment Center's ombudsman, about "government agents who sift through the megabytes of data that ordinary citizens spin off in their daily routines. (These agents) do their work secretly, silently and from far away … Your government becomes more and more interested in that persona (you) whose rights have yet to be clearly defined."
Isn't that what the official Privacy and Civil Liberties Oversight Board is supposed to do — tell these silent government sifters through our private lives what American citizens' privacy rights actually are? And this board must also remind the president that he is not the commander in chief of the Constitution.
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of many books, including "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press, 2003).