In Defense of
New York Times Editorial
September 20, 2004
The debate over intelligence reform, as
important as it is, has been obscuring a vital discussion about
another recommendation by the bipartisan commission on the 9/11
attacks. The panel's report noted that no one in the government
has the job of safeguarding civil liberties as the government
seeks expanded powers to combat terrorism. It proposed assigning
that critical task to a special board.
President Bush has already staked out his
position by creating, by executive decree, a caricature of the
9/11 commission's proposed board. The Senate is considering a
much better, bipartisan measure. The issue needs serious debate
before the election.
It ought to have been a shock to hear the
commission suggest that we need a new agency to do what the courts,
Congress and the attorney general are supposed to do, in theory
at least. But the Justice Department has been steadily abandoning
its responsibility to protect civil liberties, which now hardly
seems to be in Attorney General John Ashcroft's job description
at all. A polarized Congress, wary of being portrayed as soft
on terrorism, is not an adequate defense for our constitutional
This has become an even more pressing problem
since Sept. 11, 2001, when Americans realized that they would
have to tolerate tighter security in public places, and federal
law enforcement agencies required some expanded powers to effectively
root out and destroy terrorist plots. So, pragmatically, it's
hard to simply dismiss the idea of Congress creating a special
agency to focus on civil liberties - especially given this administration's
record on the issue.
Mr. Bush has tried to sweep aside the Constitution
by declaring selected American citizens to be unlawful combatants
and jailing them indefinitely; Mr. Ashcroft's Justice Department
produced the appalling memo justifying the torture of prisoners.
It was also responsible for, among other things, jailing a lawyer
from Portland, Ore., on charges of international terrorism based
on a misreading of his fingerprints and, apparently, on his religious
beliefs. The administration set up a detention camp in Guantánamo
Bay where minimal standards of justice have been suspended or
But we don't want to trade a situation
in which no one gives priority to safeguarding our civil liberties
for one in which a Potemkin review board gives reflexive approval
to government actions that unreasonably encroach on constitutional
liberties. That is the danger with Mr. Bush's approach. His board
has no authority to speak of. It cannot initiate investigations
but has to wait for a cabinet official to request a review of
his or her own actions. Most glaring, its members are currently
serving presidential appointees who often run the operations that
the board is most likely to review - including, incredibly, the
Central Intelligence Agency, which has no legal domestic law enforcement
function but does have a strong interest in smoothing the way
for its intelligence gathering. The board - which has already
had its first meeting, behind closed doors - has no subpoena power,
no mission to conduct regular reviews of laws and no mandate to
hold public hearings or issue public reports.
A bipartisan bill submitted by Senators
John McCain and Joseph Lieberman, by contrast, would create a
panel of five people from outside the government, appointed by
the president and subject to Senate approval. That's a much better
approach, but the partisan balance should be even, as is now required
on some regulatory agencies. The McCain-Lieberman board would
be empowered to start its own investigations, require federal
officials to testify and provide documents, and issue subpoenas.
It would review proposed legislation, regulations and policies,
as well as their implementation; receive regular reports from
government agencies; and report twice yearly to Congress and the
president. The bill also requires public hearings and reports.
The panel would advise Congress on whether
"to retain or enhance a particular governmental power,"
like provisions of the Patriot Act, judging whether those powers
had actually improved national security and were adequately supervised.
Mr. McCain and Mr. Lieberman were too timid here. The review should
include the degree to which civil liberties are in fact being
breached and whether such breaches are really essential to protect
national security and public safety. The law also should include
the 9/11 commission's notion that the burden of proof is on the
Congress cannot order Mr. Bush to disband
his new board. Nor can it responsibly shirk its own duties of
oversight. But it can respond to Mr. Bush's pre-emptive move by
creating a board with independent members and real authority.
We hope that the public pressure would then be great enough for
Mr. Bush to reverse field yet again on the 9/11 report and let
the members of his review board go back to their day jobs.