The Pentagon is seeking about $350 million in its Afghanistan funding authorization to buy the Thomson Correction Center in Illinois. According to a senior administration official who briefed reporters on the plan to close Guantanamo in December, the facility will house detainees either convicted by military commissions or held in some form of indefinite detention without charge. To civil libertarians, that would entrench some of the most intolerable legal abuses of Guantanamo Bay in the name of ending it, rendering the shutdown of the facility Pyrrhic at best and misleading at worst. Sen. Mitch McConnell (R-Ky.), the Senate GOP leader, no fan of closing Guantanamo, has questioned the value of exporting Guantanamo practices to Illinois instead of ending them outright.

In the new and delicately worded letter, eight civil libertarian organizations come to the same reluctant conclusion, and urge legislators to vote against the Thomson purchase unless they also pass a “permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention.” That would earn the blessing of a coalition that “strongly support[s] the responsible closing of the Guantanamo Bay detention facility” and takes pains to praise “many of the steps the Obama Administration has taken” to close Guantanamo “the right way,” either through “repatriation and resettling” of detainees or trying them federal civilian court.

“Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution,” reads a letter signed by the Alliance for Justice, American Civil Liberties Union, Amnesty International USA, Center for Constitutional Rights, Japanese American Citizens League, National Association of Criminal Defense Lawyers, Physicians for Human Rights, and the United Methodist Church’s General Board of Church and Society. “The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.”

The letter is the first concerted forceful statement of position to Congress from civil libertarians who have expressed months’ worth of discomfort with the contours of the Thomson-based Guantanamo closure plan — or what detractors call “Gitmo North.” But it evidently did not win the support of other prominent civil liberties groups like the Constitution Project, Human Rights Watch and Human Rights First.

Here’s the full text:

TO: Members of the U.S. Senate
Members of the U.S. House of Representatives

FROM: Alliance for Justice
American Civil Liberties Union
Amnesty International USA
Center for Constitutional Rights
Japanese American Citizens League
National Association of Criminal Defense Lawyers
Physicians for Human Rights
United Methodist Church, General Board of Church and Society

DATE: April 8, 2010

RE: Opposition to the Purchase of the Thomson Correctional Center in Thomson,
Illinois—Unless Congress Also Enacts a Permanent, Statutory Ban on Using the Thomson Prison for Indefinitely Detaining Persons Without Charge or Trial, or for Holding Persons During Military Commission Trials or for Serving Sentences Imposed by Military Commissions

We urge you to oppose legislation authorizing, or appropriating federal funds for, the purchase of the Thomson Correctional Center in Thomson, Illinois, unless Congress, at the same time, also enacts a permanent, statutory ban on using the Thomson prison for indefinitely detaining persons without charge or trial, or for holding persons during military commission trials or for serving sentences imposed by military commissions. All of our organizations strongly support the responsible closing of the Guantanamo Bay detention facility, and we would support using the Thomson facility for holding any detainees now at Guantanamo who may be charged, tried, or sentenced in federal criminal court. However, we strongly oppose transporting the worst of Guantanamo policies—indefinite detention without charge or trial and military commissions—to a prison within the United States itself. If used for one or both of these purposes, the purchase of the Thomson prison could result in institutionalizing and perpetuating policies that should instead end.

On December 15, 2009, President Obama signed a memorandum directing the Attorney General and Secretary of Defense to acquire and activate the Thomson prison for use by the Department of Defense in holding detainees currently at the Guantanamo Bay Naval Base and by the Department of Justice’s Bureau of Prisons as a federal penitentiary for holding prisoners in high security, maximum security conditions. According to a study by the Council of Economic Advisers last year, the Defense Department would control 400 of the 1600 cells at the Thomson prison. The Bureau of Prisons would control the remaining cells.

On December 15, a number of government officials provided further details on who would be, and who would not be, held in the portion of the Thomson prison designated for use by the Defense Department. In a letter and accompanying questions and answers from the Deputy Secretary of Defense to Congressman Mark Kirk, the Defense Department stated that the Thomson prison would be used to imprison Guantanamo detainees whom the government is indefinitely detaining without charge or trial under a claim of detention authority based on the 2001 Authorization for Use of Military Force, and also Guantanamo detainees tried before military commissions or serving sentences imposed by military commissions. However, the Deputy Secretary’s answer to Congressman Kirk’s questions stated that Guantanamo detainees charged and tried before federal criminal courts would not be housed at the Thomson prison. Further, in a briefing by a “senior administration official” on December 15, the official stated that Guantanamo detainees cleared for release would remain at Guantanamo until transferred to other countries, and would not go to Thomson.

There is a right way and a wrong way to close Guantanamo. To date, many of the steps the Obama Administration has taken—with the support of many members of Congress, including prominent congressional supporters of the Thomson purchase–have been in the direction of closing Guantanamo the right way. The Obama Administration has worked hard to make charging decisions for detainees whom the government believes should be prosecuted in federal criminal courts in the United States, has closely collaborated with important allies of the United States in repatriating and resettling detainees cleared for release, and has continued the process of clearing detainees for release or transfer. The Obama Administration should continue all of these steps until the population at Guantanamo reaches zero.

However, there are two developments over the past year that constitute closing Guantanamo the wrong way. First, the government has reinstituted the discredited military commissions. The military commissions have now gone through eight years, two statutes, four sets of rules, but have only resulted in three convictions, with two of those convicted detainees now released. By contrast, more than 400 defendants have been convicted of terrorism-related offense in federal criminal courts. The military commissions still do not have any rules based on the new statute, continue to have fundamental problems that could result in their proceedings being held illegal under the Constitution and international law, and deservedly lack credibility both at home and abroad. Second, the government continues to claim authority to indefinitely detain without charge or trial some of the Guantanamo detainees. Even if there is legal authority to continue to indefinitely detain these men, which many of our groups dispute, the government should make the policy decision that the interests of the United States are better served by either charging a detainee in federal criminal court or repatriating or resettling the detainee.

Based on the government’s own statements, it appears that the Defense Department-run portion of the Thomson prison would house only those Guantanamo detainees being held pursuant to Guantanamo policies that should end—namely, military commissions and indefinite detention without charge or trial. Congress should not authorize, or appropriate money for the acquisition of the Thomson prison unless it also enacts a permanent statutory provision that would ensure that the Thomson prison will not become a U.S.-based prison dedicated to perpetuating Guantanamo policies that should end.

Bringing the practice of indefinite detention without charge or trial to any location within the United States will further harm the rule of law and adherence to the Constitution. Shortly after President Obama took office, the government charged, tried, and convicted the only person then-held on U.S. soil indefinitely without charge or trial. At present, the number of people held within the U.S. itself indefinitely without charge or trial is zero. However, if the Thomson prison is acquired and the current statutory prohibition on transferring Guantanamo detainees for purposes other than prosecution is allowed to expire, the number of persons held on U.S. soil without charge or trial could reportedly rise to 50 or more.

Moreover, Thomson could eventually become the place to send other persons held indefinitely without charge or trial—with the prospect of detainees being transferred there from Bagram, Afghanistan or new captures brought from other locations around the globe. The unfortunate reality that we would face if Thomson opens is that it is easier to go from 50 to 51 indefinite detention prisoners than it is to go from 0 to 1. Once the indefinite detention policy is institutionalized at Thomson, it will be difficult to hold the line at former Guantanamo detainees.

We urge that you oppose the purchase of the Thomson prison unless Congress, at the same time that it authorizes or funds the purchase, also enacts a permanent, statutory ban on using the Thomson facility for indefinite detention without charge or trial or for military commission-related detention. The current statutory ban on transferring detainees to the United States for purposes of indefinite detention without charge or trial expires at the end of the current fiscal year. Congress should not move forward with the Thomson purchase until and unless it permanently prohibits indefinite detention and military commission-related detention at the Thomson facility.

We would be very interested in meeting with you or your staff to discuss this issue further.

Update, 1:06 p.m.: The Government Accountability Project is a last-minute signatory, bringing the total number of groups signing the letter to nine.

Detainees at Guantanamo Bay (The Toronto Star/ZUMApress.com)

If there was any doubt that Republicans in Congress will oppose this year’s push from President Obama to close the detention facility at Guantanamo Bay, Sen. Mitch McConnell’s (R-Ky.) speech Wednesday to the Heritage Foundation ought to have laid it to rest. In the course of a half hour’s worth of invective against the administration’s counterterrorism policies, the Senate minority leader pledged to block funding for any efforts at giving terrorism detainees trials in civilian courts. But he held out a special reverence for the much-vilified locus for military commissions and indefinite detention. “Thankfully, Gitmo is still open for business,” McConnell said.

[Security1] McConnell then turned, briefly, to an argument that is starting to be shared by McConnell’s typical political enemies — and which could seriously complicate the administration’s plans for the final closure of Guantanamo Bay. If Obama simply moves the military commissions and indefinite detentions featured at Guantanamo to a new detention facility in Thomson, Ill. — as the administration currently plans –then there is “no doubt” that al-Qaeda will use Thomson “for the same recruiting and propaganda purposes” it’s used toward Guantanamo, McConnell said, a prospect that “eliminates the administration’s only justification for closing Guantanamo.”

With reluctance, many in the civil-liberties community think McConnell has a point. They have no patience for McConnell’s argument that terrorism detainees should not receive civilian trials. But the administration’s plan to close Guantanamo, from their perspective, merely transfers its most offensive practices to the middle of Illinois. In what they see as a tragic irony, the cohort that led the charge during the Bush administration to shutter the Guantanamo facility is increasingly vocal in opposing Obama’s already-imperiled path to shutting it down.

“What’s the point of simply moving Guantanamo on shore?” said Shayana Kadidal, an attorney with the Center for Constitutional Rights. Chris Anders, senior legislative counsel for the American Civil Liberties Union, said flatly, “We oppose any legislative proposal that links the purchase of Thomson to indefinite detention without charge and the use of military commissions.”

The coalescing civil-libertarian opposition to the Thomson plan now has a legislative target. Robert Hale, the Pentagon’s comptroller, announced on Monday that the $159 billion funding request for next year’s operations in Iraq and Afghanistan will contain a $350 million “transfer fund” for detainee operations that will authorize the administration to “let us open the Thomson, Illinois, site.” Placing the money for buying Thomson from Illinois — a necessary step toward transferring those Guantanamo detainees that will not be tried in federal civilian court to the prison –effectively dares critics to face accusations of not supporting the troops in Afghanistan if they try to block funding for for the Guantanamo closure.

At least one question about Thomson that civil libertarians consider crucial remains unanswered by the Obama administration. The administration has stated clearly that Thomson is designed to house detainees tried before military commissions, as occurs at Guantanamo. But it has been much vaguer about embracing or renouncing the even more contentious prospect of indefinite detention, Guantanamo’s other chief feature.

Last month, a year-long interagency task force on Guantanamo detainees recommended to the White House that the administration ought to continue to hold about 50 detainees indefinitely without charge, claiming simultaneously that there is insufficient evidence to convict them before either civilian or military courts but that their release would jeopardize national security. An administration official who would not discuss ongoing deliberations on the record said that the National Security Council is still reviewing the task force’s recommendations. “You should not consider them already accepted,” the official said, but cautioned that there is no timetable for formal adoption, rejection or modification of the recommendations, since “detainees’ status’ could change, based on the status of their habeas case [or] the situation on the ground in a receiving country” to which the detainees’ might be transferred.

With the arrival of a funding mechanism for Thomson on Capitol Hill, that vagueness leaves the civil liberties community unable to say that the administration has ruled out holding detainees indefinitely without charge, a bedrock principle of every civil libertarian organization, and unable to distinguish Thomson’s planned activities from Guantanamo’s objectionable ones. “If all we’re doing is exporting Guantanamo to Thomson for purposes of military commissions and indefinite detention,” said Virginia Sloan, president of the Constitution Project, “we’re very strongly opposed to that.”

Devon Chaffee, who handles national-security issues for Human Rights First, cautioned that the contours of the Thomson legislation were not yet fully defined. But, she said, “Human Rights First will continue to oppose indefinite detention without trial and the use of a flawed military commission procedure regardless of where it’s implemented. As long as the U.S. continues those policies, it will fail to overcome the policy mistakes that made Guantanamo a stigma. Those are two positions of ours that are not going to change.”

As a result of the administration’s vagueness about continuing to hold detainees at Thomson indefinitely without charge, the $350 million funding vehicle could unite liberal congressional opponents of indefinite detention with conservative congressional advocates of it. And the Obama administration does not have much legislative margin for error, even on a request as normally politically sacrosanct as war funding. Like with the defense budget overall, the Iraq and Afghanistan money for next year, formally known as the Overseas Contingency Operations Fund, must be authorized by the Senate and House armed-services committees before the formal appropriation is taken up by the Senate and House appropriations committees, all preceding full votes before the Senate and House. Republicans in the Senate proved willing in December to filibuster the defense appropriations bill in a failed bid to stop Obama’s health-care reform package. A potential alliance of convenience between Republicans who want to keep Guantanamo open and liberal Democrats who want to prevent Thomson from becoming a new Guantanamo could jeopardize the measure’s passage.

Anders said that if the Thomson plan was “reconfigured for the pre-trial detention and post-conviction sentencing of people tried in [federal] courts we might very well take a very different position,” holding out the prospect of the administration earning civil libertarian support by shuttering both Guantanamo and its policies. But, he added, “that’s not how it’s being set up.”

That isn’t a consensus position among civil libertarians. David Remes, a lawyer for several Guantanamo detainees and the executive director of the Appeal for Justice, a human-rights legal practice, said he opposes Thomson under any circumstances. “Number one, I oppose preventive detention in principle, and number two, I don’t see how spending a lot of money to change the zip code moves the ball forward,” Remes said. “I’m not in favor of moving anything to Thomson. There really is no difference between being tried in Gitmo North versus Gitmo South.”

Nor has the civil libertarian community been consulted on the plan, a position that many consider to have effectively cut off the administration from potential outside messaging surrogates. “The community has been frustrated working with the administration on this because we’ve been available and more than willing to help defend policies we think are the right ways to close Guantanamo,” Sloan said. “They haven’t really done that here. We feel we’re behind the eight ball.”

Shuttering Guantanamo within one year was among of Obama’s first pledges in office. But the deadline slipped after numerous congressional missteps, including a dramatic Senate vote in May, embraced by 90 senators, to prohibit funding to “transfer, release, or incarcerate” Guantanamo detainees in the United States. Sen. Harry Reid (D-Nev.), the Democratic leader, insisted then that the vote was mostly symbolic and any administration plan to close Guantanamo would receive careful Senate consideration.

But the opposition to the administration’s plans for closing Guantanamo is increasing, even among those who ultimately want the U.S. to be rid of all forms of indefinite detention. Anders said that for the ACLU, “The goal has never been changing the geography. The goal is to close both Guantanamo and the policies that are problematic there — the use of military commissions and indefinite detention. Transferring those policies to Thomson is something we oppose.”

Calling it “the latest in a string of seriously misguided decisions related to the closing of the secure facility at Guantanamo Bay,” McConnell said in a statement that holding the same prisoners on U.S. soil takes the wind out of the sails of the administration’s earlier argument that the prison at Guantanamo is a powerful recruiting tool for al-Qaeda.

The explanation we used to get for moving detainees onto American soil was that Guantanamo’s existence is a potent recruiting tool for terrorists. But even if you grant that, it’s hard to see how simply changing Guantanamo’s mailing address would eliminate the problem. Does anyone really believe Al Jazeera will ignore the fact that enemy combatants are being held on American soil? It’s naïve to think our European critics, the American Left, or Al Qaeda will be pacified by creating an internment camp in Northern Illinois; a ‘Gitmo North’ instead of ‘Gitmo South.’

Yesterday, although some more moderate civil liberties and human rights groups praised the Obama administration’s decision to move Guantanamo detainees to Illinois as an important first step to closing down the notorious prison in Cuba, some voiced concern that this would simply shift indefinite detention without trial rather than eliminate it.

As the Center for Constitutional Rights’ Executive Director Vincent Warren said in a statement yesterday:

If President Obama is simply moving detainees from one Guantánamo to another, he has done nothing to honor his pledge to close the prison camp. …

Moving the Guantánamo system onshore is not change. Whether in Thomson, IL, at Guantánamo, or elsewhere, the very idea that we would toss aside our founding constitutional principles and allow any executive the power of kings to imprison someone forever without a trial is anathema to democracy.

In the past, McConnell’s principle complaint about moving Guantanamo detainees onto U.S. soil was that they might be accorded more constitutional rights and would endanger U.S. national security. Yesterday, he repeated those arguments as well, predicting that “There will now be another terrorist target in the heartland of America” and that detainees will be able to communicate with “terrorists on the outside,” — “a danger that would undoubtedly increase with the additional legal rights detainees will enjoy once they are moved onto U.S. soil.”

In a letter sent yesterday to Illinois Gov. Pat Quinn, administration officials promised that terror suspects would be in a separate part of the facility run by the U.S. military, in a security situation “beyond Supermax,” and will be denied the ability to communicate with other federal prisoners.

Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions. About 90 others have been cleared for repatriation or resettlement in a third country, and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material.

My emphasis. As Marc writes, that sounds a lot like the administration will just simply hold them in legal limbo, as per the so-called “Fifth Category” of detentions outlined by President Obama in his May speech at the National Archives. Adam Serwer wrote a great piece on how that category of detainees has roiled the civil liberties community.

Now, the Obama administration has subsequently stated that it’s not going to seek any additional authority from Congress for such preventive detention. But that doesn’t solve the problem of what becomes of those detainees. Will the courts ultimately decide that the administration doesn’t, in fact, have the power to hold them without charge? And where will they be held if Guantanamo is to close? After all, if they’re moved into the United States, the courts will almost certainly exercise jurisdiction over them.

A possible clue comes in a recent and widely discussed report from Ken Gude of the well-connected Center for American Progress. As my colleague Daphne Eviatar reported, Gude proposed simply sending the detainees to Bagram Air Field in Afghanistan — which would, in effect, create Neo-Guantanamo. There has been a lot of discussion over whether Gude was floating a trial balloon for the administration. We may soon see.

Update: Adam corrects me on what Gude was actually proposing:

Spencer Ackerman speculates that these detainees might be sent to Bagram. That was the Bush administration’s solution for avoiding judicial scrutiny of detention, but that approach is distinct from what Ken Gude and the Center for American Progress are proposing. The CAP proposal is to send those detainees who were captured in the Afghanistan-Pakistan area, and who have lost the first round of their habeas appeals, back to Bagram. Sending “fifth category” detainees captured in third countries would jeopardize the government’s position in appealing the judicial ruling that granted detainees captured in third countries and held at Bagram habeas rights.

Apologies to Ken; I appreciate the correction.

And she’s right. As I reported last week, the Senate Judiciary Committee ended up adopting almost all the Republican changes to the bill that removed or watered down civil liberties protections, while voting against most of the reforms proposed by Sens. Russ Feingold (D-Wis.), Richard Durbin (D-Ill.) and Arlen Specter (D-Pa.), which would have limited the FBI’s powers under the Patriot Act to going after what the law was designed to attack: international terrorism.

The result, as Feingold put it, was that the Senate Judiciary Committee had become the “prosecutor’s committee” — accepting virtually every recommendation from the FBI and Justice Department prosecutors to expand their powers.

“The ACLU is encouraged by the willingness of congressional leaders to lay out details of immigration reform, but we strongly oppose any reforms that would unnecessarily violate the privacy of Americans,” said Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, in a statement issued today. “We urge lawmakers to reject any proposed immigration reform measures that include a biometric national worker ID system or a universal compulsory electronic employment verification system. These systems come at enormous cost to the American public and do little to prevent the hiring of undocumented workers. It is unacceptable to force Americans to be fingerprinted and photographed in order to work.”

The idea of a national ID and employment verification system is something immigration reform advocates often include as a way to appease critics of a comprehensive bill that would legalize some currently illegal immigrants. But the ACLU and other civil liberties groups have long opposed it.

Today the ACLU also criticized the controversial portion of the immigration laws that allow, under section 287(g), local law enforcement to enforce federal immigration law, which has led to “racial and ethnic profiling across the country” and discouraged immigrants from cooperating with police, as I’ve discussed in previous posts. The Department of Homeland Security under Janet Napolitano has actually expanded the 287(g) program, despite the documented problems.

Congress should also end the prolonged detention of illegal immigrants who pose no risks, allow immigration judges to consider U.S. citizen children and spouses when deciding deportation cases, and allow the courts to ensure fair immigration hearings, the ACLU said today. DHS recently announced some reforms to immigration detention, which included a promise to consider alternatives to detention for illegal immigrants who aren’t considered dangerous. Those who advocate cracking down on illegal immigrants, however, strongly oppose letting them go free until their deportation hearings, arguing that there’s little incentive for them to show up to immigration court if they might be deported.

As for what the ACLU wants to see in a comprehensive immigration reform bill, here’s the group’s statement on that.

Americans’ surprise at the announcement may be best explained by a quick look at Obama’s domestic policies when it comes to the international war on terror — so let’s take a glance at Glenn Greenwald’s page today at Salon. Just below his discussion of Obama’s Nobel prize is a lengthy analysis of how the president, now with the help of Congress, has repeatedly suppressed evidence of war crimes committed by the previous administration.

From trying to exempt abuse photos from the Freedom of Information Act to dismissing torture cases on “state secrets” grounds, encouraging Congress to limit civil liberties protections against broad-based FBI snooping and refusing even to investigate cases where the Defense Department appears to have tortured detainees in its custody (let alone investigating the policymakers who approved of the abuse), the Obama administration has so far amassed a disappointing record on “peace”-related activities at home.

The Nobel Committee was obviously looking at different things when it made its award, and emphasized Obama’s ability to “capture the world’s attention” and offer people hope for the future. That’s a good start, and hopeful rhetoric is important and a welcome change for the so-called “leader of the free world.” But true diplomacy and progress and “peace” can’t come from hiding the brutality of the past.

So far, just as he’s promised a new diplomacy, the President has made lots of hopeful promises about a new transparency and accountability in government. He has yet to follow up on them.

“We’re deeply disappointed that the Obama administration sided with the committee Republicans to pass amendments to remove reforms from the already watered-down bill,” he said this afternoon, referring to seven amendments, five of which were introduced by Senator Jeff Sessions (R-S.C.), which removed civil liberties protections and which Sessions said were mostly recommended by the Obama administration’s FBI and Justice Department in closed-door classified briefings.

“We’re very disappointed in the final bill that was voted out of committee,” said Bankston. “It has fewer reforms than the original bill from Sen. Leahy, and it’s a very far cry from Sen. Feingold and Durbin’s JUSTICE Act.” The JUSTICE Act would have required the government to specify more clearly the targets of their investigations and their connections to terrorism, to keep the FBI from using its authority to engage in broad-based data-mining of Americans’ phone, library and business records.

The amendments adopted included removing a requirement that the FBI periodically review its gag orders on National Security Letter recipients, removed judicial review for those gag orders, and watered down an effort to heighten the showing required when the FBI is seeking library records. The text of the final amendments and votes on each is available on the Judiciary Committee’s Website here.

Bankston was also disappointed that the Judiciary Committee refused to consider amendments to the FISA Amendments Act passed last year, which he calls “a much graver threat to civil liberties.” Feingold’s attempt to offer an amendment was withdrawn when Committee Chairman Leahy said he’d oppose it on procedural grounds.

To Bankston, this was all evidence that Congress is far too willing to cave to the wishes of a Democratic administration, even if its proposals are just as bad for the civil liberties of Americans as the Republican administration’s were.

“In 2005, the Judiciary Committee was able to pass much stronger reforms under a Republican administration,” said Bankston. “Now, in a position of power and with a vaunted supermajority, the Democrats are still bargaining against themselves rather than having a united front and introducing new civil liberties protections. I think it’s because of the White House’s position that these powers need to be renewed. There’s an unwillingness to consider even minor reforms.”

The American Civil Liberties Union was similarly disappointed, and Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office, came out with this statement this afternoon:

We are disappointed that further changes were not made to ensure Americans’ civil liberties would be adequately protected by this Patriot Act legislation. This truly was a missed opportun Sity for the Senate Judiciary Committee to right the wrongs of the Patriot Act and stand up for Americans’ Fourth Amendment rights. The meager improvements made during this markup will certainly be overshadowed by allowing so many horrible amendments to be added to an already weak bill. Congress cannot continue to make this mistake with the Patriot Act again and again. We urge the Senate to adopt amendments on the floor that will bring this bill in line with the Constitution.

Responding to Sen. Dianne Feinstein’s (D-Calif.) assurances that the bill, as proposed, is necessary and important based on classified information she’s received that can’t be shared with the American public, Specter demurred.

“We have moved a distance from where we were before, in requiring a foreign terror connection,” he said, noting that several provisions of the bill no longer require that. “In 2005, the bill was handled unanimously. The core of the bill required a connection with a foreign power. That’s really what we’re looking for here in the Patriot Act. When that requirement is taken away it seems to me it guts the structure of the Patriot Act. You have the provision of lone wolf, with no connection to a foreign power, which is the core of the patriots act. It hasn’t been used at all. It seems to me something this committee ought not rush to retain.”

As for “roving wiretaps,” Specter added that he opposed those back in 2001 because they failed to require the FBI to specify who they’re wiretapping. “The whole point of probable cause for search and seizure is probable cause with specificity,” said Specter. “Our committee ought to be more assertive as a guardian of separation of powers. This has a philosophical connection to what we’re doing on state secrets,” he said, referring to the state secrets privilege that the Justice Department has repeatedly asserted to dismiss lawsuits charging government wrongdoing. “Now all you have to do is have the executive branch assert state secrets and that closes the matter. … It’s still the executive branch, without judicial review to take a look.”

He continued, “I would hope this committee would be more assertive of the separation of powers under the Constitution.”

After the House Judiciary Committee worked for days shortly after September 11, 2001 to hammer out a bill that both parties’ representatives unanimously agreed to, Conyers recalled with obvious irritation, the House Rules committee managed to hack it up so much behind closed doors that by the time the full House voted on it the next day, it was unrecognizable.

“Then Chairman Dreier” — referring to Rep. David Dreier (R-Calif.), then chairman of the House Rules Committee — “under lord knows whose instructions, substituted that bill for another bill, that we at Judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring.” Conyers proceeded to say that many of the problems being discussed at the hearing with the current law would have been addressed by the original bipartisan one, such as offering an opportunity for people harmed by the Patriot Act’s abuses to seek redress. The original law also “may have eliminated, or simplified, litigation about Patriot Act abuses that continue today,” said Conyers.

Rep. Jerrold Nadler (D-N.Y.), who chaired today’s hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, backed up Conyers’ version of what happened.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act. Then the bill just disappeared. And we had a new several-hundred-page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

None of the Republicans at today’s hearing challenged the Democratic chairmen’s version of events.