Blog — American Civil Liberties Union (ACLU)

August 23, 2013

Presidential Loyalists Rubberstamping Surveillance: This Is the Public Debate We Were Promised?

By Anne Weismann

Scales of JusticeFollowing up on his promise of a few weeks ago, President Obama reportedly has named four “outside experts” to an outside panel to review the government’s surveillance activities.  The four include Michael Morell, former CIA deputy director; Richard Clarke, former White House counter terrorism and cybersecurity advisor; Peter Swire, former special assistant to President Obama; and Cass Sunstein, former administrator of the White House Office of Information and Regulatory Affairs. These selections demonstrate the president’s true intent is to quell public concern, while conducting business as usual.

With the exception of Richard Clarke, who has not been afraid to criticize administration anti-terrorism policies and practices, the panel consists of Obama loyalists who can be counted on to rubber stamp the administration’s surveillance activities.  Take Cass Sunstein, former White House “regulatory czar” who proved to be a huge disappointment to the open government community by failing to even engage on transparency issues, much less advance their cause.  As a former advisor to the president, and with his wife, Samantha Power, now the ambassador to the United Nations, Mr. Sunstein seems unlikely to make any waves.  Peter Swire advised the president on economic policies in the housing and technology areas, and is known primarily for creating the HIPAA privacy rule — a far cry from the privacy issues implicated by the government’s surveillance programs.  Former CIA deputy director Michael Morell staunchly defended the government’s use of harsh interrogation techniques, which provides a good barometer on where he is likely to come out on surveillance issues.

Not only has President Obama stacked the deck with his selection of panelists, but also he excluded representatives of the transparency community and those who have been critical of the government’s anti-terrorism activities.  There is no Jameel Jaffer from the ACLU, who has gone toe to toe with the administration on the legality of its surveillance activities.  There is no one from the Electronic Frontier Foundation, the organization responsible for securing the recent disclosure of FISC Judge John Bates' opinion criticizing the Justice Department for its prior falsehoods regarding its collection of emails of American citizens.  And there is no Jack Goldsmith, the former head of DOJ’s Office of Legal Counsel, who took on the Bush Administration’s anti-terrorism activities in his book The Terror Presidency.  In short, there is no one to counter the whitewashing we can expect from the likes of Messrs. Sunstein and Morell.

All this points to one inescapable conclusion:  we need something along the lines of a “Church Committee,” the precursor to the U.S. Senate Select Committee on Intelligence chaired by then-Senator Frank Church in 1975, to investigate the intelligence-gathering activities of the CIA, NSA, and FBI brought to light by the Watergate scandal.  Then, as now, Congress had failed to conduct sufficiently rigorous oversight, and there was a sense of an administration run amok.  But what we most certainly do not need is a panel of administration loyalists likely to gloss over, rather than critically assess, programs initiated by our overzealous intelligence community.

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