Who's Watching the Spies?

The White House has rejected House Speaker Nancy Pelosi's pick for a newly created U.S. government civil liberties board--a move that may doom efforts to get the panel up and running while President Bush remains in office.

Without any public announcement, the White House recently sent a letter to Capitol Hill stating it would nominate only one of two names recommended by congressional leaders to sit on the five-member civil liberties panel. The candidate whose name it would not forward: Morton Halperin, a veteran and sometimes controversial civil liberties advocate who has a famous role in the history of modern debates over government wiretapping. While serving on the National Security Council during the early days of the Nixon administration, Halperin's phone was secretly wiretapped by the FBI because his then boss, Henry Kissinger, suspected he was leaking to the press.

The White House gave no explanation for why it had vetoed Halperin from serving on the civil liberties panel. But the move prompted Senate Majority Leader Harry Reid to tell the White House that the Senate, in retaliation, will not move any of President Bush's three candidates for the panel (one of whom, Ronald Rotunda, was once a legal adviser to former Defense Secretary Donald Rumsfeld).

"How would we ever get our nominees confirmed if we could only confirm Republicans?" explained Jim Manley, Reid's spokesman, when asked about the majority leader's hardball stand.

A White House spokesman declined comment on the dispute. But neither White House officials or congressional sources (most of whom declined to be quoted by name talking about politically sensitive confirmation issues) agreed that there is one major consequence of the stalemate: the only government board specifically charged with monitoring the impact of U.S. government actions on civil liberties and privacy interests has a decreasing chance of ever actually meeting, much less doing anything, for the rest of the year.

Although it was first mandated by Congress in Dec. 2004, and reauthorized with newly independent powers nearly a year ago, the civil liberties board exists today in name only. It has no office, no staff and no members. (An earlier incarnation of the board—attacked by critics as a rubber stamp for the White House—went out of business last February.) .  "It's disgraceful," said Richard Ben-Veniste, a member of the 9/11 commission, which first recommended that the board be created to protect civil liberties affected by the war on terrorism.

As Ben-Veniste and others note, the impasse over the board comes at a time when both Congress and the Bush administration are moving forward on multiple issues that potentially have deep consequences for civil liberties. The Senate this week is expected to approve a surveillance bill giving the government expanded new powers to wiretap U.S. citizens. The Justice Department is drafting  guidelines that would give the FBI more latitude to use informants to secretly spy in Arab-American or Muslim communities. The Department of Homeland Security is moving ahead on a controversial new program to use Pentagon spy satellites for domestic purposes.

All these and more would be prime issues for the civil liberties board to consider—and in some cases, presumably raise red flags about. (The board is charged under the law with the authority to independently investigate the impact such measures might have on civil liberties and to provide regular reports to the Congress.) But some Democrats would just as soon wait, in hopes that an Obama administration will take office and appoint members who they believe will be more sympathetic to the core mission of the board. "If Bush makes his three appointments, then he'll have control of the board long after he leaves office," said Rep. Carolyn Maloney, a New York Democrat who was chief sponsor of the bill last year that reconstituted the civil liberties board with new expanded and independent powers. "If the goal is to proect civil liberties, you might have a stronger board by waiting."

For his part, Halperin said he only learned last week—when he got a phone call from an aide in Pelosi's office—that the White House considered him unacceptable for a new round of government service. "I'm more than disappointed," Halperin told Newsweek. "I think they owe me an explanation and they haven't given me one."

In contrary to his reputation in some circles as a civil liberties firebrand, Halperin noted he actually supports the new White House backed-surveillance bill-–and even wrote an op-ed in The New York Times on Tuesday endorsing the measure.  (Neither his op-ed nor the Times made any mention that he had been recommended by Pelosi to serve on the civil liberties panel.) But Halperin also acknowledged there are plenty of reasons the White House might have been reluctant to formally nominate him for a federal panel. A former Clinton administration official (he served as senior director for democracy in the National Security Council) who has more recently been affiliated with the Center for American Progress, a Democratic-oriented think tank, Halperin has been a fierce critic of Bush administration policies. Just days after President's warrantless wiretapping program was first disclosed in December 2005, Halperin said in a statement (still linked on the Center for American Progress’ website: "By secretly authorizing the National Security Agency to wiretap the phones of American citizens, President Bush has demonstrated his utter contempt for the laws that have guided his predecessors in times of great national peril. This revelation…underscores the lawlessness and moral bankruptcy of this White House."

As if that weren't enough to disqualify him, Halperin now works as executive director of the Open Society Policy Center--one of the many public policy outfits created and bankrolled by George Soros, the billionaire investor who has been a prime funder of Democratic independent expenditure groups that worked hard to defeat Bush in 2004 (and are now trying to make sure that none of his policies continue under a President McCain).

Asked how Pelosi came to choose Halperin in the first place, Brendan Daly, the Speaker's spokesman, told NEWSWEEK: "The reason wasn't to put a finger in Bush's eye. The reason was he's strong on civil liberties."

But Pelosi, who remains committed to the civil liberities board, is now looking for another candidate--presumably one that would be just a little less unacceptable to White House sensibilities.