“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 Feingold’s attempt to offer an amendment was withdrawn when Committee Chairman Leahy said he’d oppose it on procedural grounds.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.

Amendments proposed by Sen. Richard Durbin (D-Ill.) that would have required that the target of a National Security Letter have some alleged connection to terrorism, and by Sens. Russ Feingold (D-Wis.) and Arlen Specter (D-Pa.) that would have eliminated the “lone wolf” provision that allows surveillance of suspects with no suspected link to a known foreign terrorist organization, were defeated.

Much of the justification cited by Senators who supported the broad surveillance powers contained in the bill was based on classified briefings from the FBI and Justice Department. Feingold, who drew different conclusions from those briefings, lamented that the information about how the Patriot Act has been used remains classified.

Sen. Al Franken (D-Minn.), who in the past has expressed concerns that parts of the Patriot Act violate the Fourth Amendment’s “search and seizure” clause, didn’t say a word at the markup session. He voted in favor of the Leahy-Feinstein bill renewing the expiring provisions of the Patriot Act.

Update: Here’s the final committee vote:

Aye: Kohl, Feinstein, Schumer, Cardin, Whitehouse, Klobuchar, Kaufman, Franken, Kyl, Cornyn

Nay: Feingold, Durbin, Specter, Sessions, Hatch, Grassley, Graham, Coburn

Sen. Russ Feingold (D-Wis.)  just made a key point in response:

I’m just concerned about the role of a Judiciary Committee that whenever the FBI says it doesn’t work for them that’s it, end of debate. Or when the prosecutor says something, that’s it. We’re not the Prosecutor Committee, we’re the Judiciary Committee. It seems to me that whenever an investigator says something or prosecutor says something, that’s the end of the debate. I don’t buy it, that’s not our job.

The committee just dropped the word “articulable” from the standard, on the recommendation of Sen. Dianne Feinstein (D-Calif.). So now the FBI would have to have specific facts supporting its belief that the information sought has some relevance to a national security investigation, it just doesn’t have to be able to tell anyone what those facts are. Of course, since the law doesn’t require it to tell anyone outside the FBI, as a practical matter, the amendment doesn’t really make much difference.

So far, much of the debate is focusing on whether and to what extent the law should be focused on investigations of foreign terrorists, as opposed to being open to be used for ordinary domestic law enforcement. Given that the Patriot Act was passed after the 9/11 terrorist attacks to prevent another one, Sens. Richard Durbin (D-Ill.), Russ Feingold (D-Wisc.) and Arlen Specter (D-Pa.) have all come out strongly in favor of requiring some nexus to international terrorism.

Sens. Dianne Feinstein (D-Calif.), Patrick Leahy (D-Vt.), Jeff Sessions (R-Ala.), Sheldon Whitehouse (D-R.I.), Jon Kyl (R-Ariz.) and others all appear to be leaning towards the view of the FBI and Justice Department, which has told the senators in classified sessions that the broader versions of the Patriot Act provisions are necessary to combat terrorism.

Sen. Patrick Leahy (D-Vt.) (Zuma Press)

Republicans and Democrats have been sniping about the USA Patriot Act ever since Congress passed the law in the wake of the September 11 terrorist attacks to try to forestall another such disaster. But now, it’s the Democrats who are sniping among themselves about it. While some lawmakers, like Sens. Russ Feingold and Dick Durbin, have insisted that Congress must amend the law to rein in the FBI’s powers to snoop into innocent private activities, other Democratic lawmakers, such as Sens. Dianne Feinstein and Patrick Leahy, have resisted significant reforms.

Illustration by: Matt Mahurin

Three provisions of the law will expire by the end of this year if they’re not renewed, and have been the subject of recent hearings. Those are: the “roving wiretap” provision, which allows the government to tap  phones and other electronic devices used by any person suspected of involvement in terrorism; section 215 of the Patriot Act, which allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation; and the so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.

The other controversial provisions include the FBI’s authority to issue National Security Letters, or NSLs, which seek a broad range of information from businesses about their customers but do not require a warrant or any other court order; and the “sneak and peak law”, which allows the FBI to search a suspect’s home without informing the target that they’ve been searched.

Civil liberties advocates insist these provisions are all too broad as currently written, and allow the FBI to abuse its authority to conduct wide-scale “data mining” of the general population, searching innocent people’s records and personal information while the government tries to root out wrongdoing. Because in many cases it’s not clear how the government is using its broad authority and who gets access to the information, privacy advocates worry that the government could retain such information and use it in ways unconnected to terrorism investigations.

A 2007 report from the FBI Inspector General concluded that the FBI had issued almost 150,000 NSL requests between 2003 and 2005, often collecting information about people not even suspected of having done anything illegal. The Inspector General also found that the FBI’s record-keeping was so poor that it often didn’t know how many letters it has issued, and requested information it wasn’t entitled to receive.

Advocates worry that many sections of the Patriot Act allow similar abuses. “The concern is that the changes the Patriot Act made were such that so long as the FBI agent certifies that the information they’re seeking is relevant to a terror investigation, they can get it,” explained Farhana Khera, Executive Director of Muslim Advocates, which recently sued the government for more information about FBI surveillance practices. “We argue that’s way too broad. It should be tied to a suspected terrorist or terrorist activity.” The FBI’s current authority “has unleashed concerns about the FBI getting access to data on literally millions and millions of Americans,” she said.

Advocates for Muslim-Americans also worry that the laws are being used to target and harass law-abiding American muslims, landing them on no-fly lists, preventing them from getting hired for federal jobs, or deterring them from contributing to legal charitable organizations that assist needy Muslims in other countries.

To address these problems, in mid-September, Feingold and Durbin, both of whom have long expressed concerns about the Patriot Act, introduced the JUSTICE Act (Judiciously Using Surveillance Tools In Counterterrorism Efforts), which would renew section 215 and the roving wiretap provisions, but would require the government to provide more justification for using them, and to specify more clearly the targets of their investigation.

The bill would also rein in the FBI’s authority to issue National Security Letters by requiring the government to specify what it’s looking for and how the information is relevant to an ongoing national security investigation. Meanwhile, it would repeal the part of the FISA Amendments Act that immunized telecommunications companies such as AT&T that assisted the government in its warrantless wiretapping program.

But a week later, to the dismay of many civil libertarians, Sen. Leahy introduced the USA Patriot and Sunset Extension Act. Cosponsored by Sens. Benjamin Cardin (D-Md.) and Ted Kaufman (D-Del.), it would extend the expiring provisions with only minor modifications, and would leave the “lone wolf” and “roving wiretap” provisions intact. It also would not include any reforms to the FISA Amendments Act.

By the time of the Senate markup session last week, Sen. Leahy, the Judiciary Committee Chairman, had produced a substitute version of his bill, co-sponsored by Sen. Dianne Feinstein (D-Calif.), who chairs the Intelligence subcommittee. This bill became the basis for the markup, effectively destroying the chances for adoption of the JUSTICE bill, although pieces of it could still be introduced as amendments.

Civil liberties advocates quickly expressed their disappointment. The American Civil Liberties Union called it “a watered-down version” of the original Leahy bill. Kevin Bankston of Electronic Frontier Foundation similarly described it as having “even fewer PATRIOT reforms than the original Leahy bill.”  Although Feingold and Durbin offered amendments, the only one that succeeded was one amending the “sneak and peak” provision. The amendment would require the government to notify the subject of a search within seven days, instead of 30, as the law stands now. An amendment offered by Senator Durbin to narrow the broad Section 215 powers, which now allows the government to gain access to “any tangible thing,” failed.

Even Sen. Al Franken (D-Minn.), who at the recent Senate Judiciary Committee hearing took the time to read the Fourth Amendment to the U.S. Constitution to Justice Department official David Kris, voted to support the Leahy-Feinstein substitute bill, and against the Durbin and Feingold amendments.

Feingold has repeatedly expressed concern that the government is not providing enough information for the public to know how the Patriot Act is being used.

“I remain concerned that critical information about the implementation of the Patriot Act remains classified,” said Feingold at a recent hearing, noting that he believes that much of that classified information “would have a significant impact on the debate.” Although the Justice Department recently acknowledged that the “lone wolf” authority has never been used, said Feingold, “there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know.”

Some representatives in the House, where they’re also debating changes to the Patriot Act and will eventually put forward their own bill, feel the same way. Earlier this week, Reps. John Conyers (D-Mich.), Jerrold Nadler (D-NY), and Bobby Scott (D-Va.) wrote a letter to Attorney General Eric Holder asking for more information about how Section 215 orders have been used to help inform the House debate. (Eventually, the House and Senate bills to amend the Patriot Act will have to be reconciled before they go to the President for his signature.)

Although Feinstein has cited classified information as her reason for supporting the re-authorization of section 215 as is, Feingold disagrees. The Feingold amendment would have limited what kinds of records could be obtained under section 215, and required that the government show that those records are related either to terrorist activities, or to people in contact with a terrorist.

Interestingly, notes Michelle Richardson, legislative consultant to the ACLU, during the Patriot Act reauthorization process in 2005, “Democrats and Republicans supported amendments to section 215 to limit it to terrorist activities,” she said. “But now they don’t.”

The problem with reauthorizing many of these provisions, says Richardson, is that “we don’t know what information they’re getting, how much, and who has access,” she said. “But we believe that anytime you get the information, it’s a violation. These are principles over 200 years old in this country, that government should not be getting this information about you unless they have reason to believe you’ve done something wrong.”

That principle is increasingly being discarded. Attorney General Guidelines issued at the end of the Bush administration, for example, eliminated the requirement that the FBI must have reason to believe the target of an investigation has committed a crime before initiating that investigation.

“Who knows if the information comes back to haunt you,” said Richardson. “If you apply for federal student aid, for a federal job, or end up on a no-fly list. We don’t know who has access to the information, and where it’s supposed to go. That’s not how things are supposed to work in this country.”

On Thursday, the markup session will continue in the Senate Judiciary Committee, as specifics on the bill get hammered out. Much of the critical information necessary to determine how it’s working, though, will remain secret.

According to the ACLU, the committee substituted the original language of the bill with “a watered-down version” offered by Senators Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.).  An alternative bill, sponsored by Feingold and Sen. Richard Durbin (D-Ill.), known as the JUSTICE Act, would have added civil liberties protections not only to the Patriot Act but also to other surveillance laws.

Earlier today, Feingold similarly expressed disappointment that the bill currently being debated in the committee would not adequately provide information about how the FBI is using its authority, and would not sufficiently limit the use of national security letters, which allow the FBI to obtain customer information from businesses and prevent them from disclosing the requests to their customers.

Even as House lawmakers are celebrating their remarkably swift move to infuse the popular cash for clunkers program with additional funds, some lawmakers and environmentalists are warning that extending the program is premature without knowing what it even does.

Of the $1 billion committed under the initiative — which offers drivers up to $4,500 to trade their gas-guzzlers for more fuel efficient vehicles — the Obama administration has released data on the trades surrounding less than $69 million. Without further information about what models are being scrapped, what models are being sold, and the environmental benefits of the swaps, critics worry that the program might be failing in its stated goals of reducing emissions and a reliance on foreign oil.

“A billion dollars has been spent on a program that could conceivably be a disaster for the environment, and without even waiting to see where that money went, they’re throwing more money into the pot,” said Daniel Becker, director of the Safe Climate Campaign, which advocates for better fuel efficiency. “This whole thing is a blind experiment. Congress is making fact-free decisions.”

Launched just this week, the cash for clunkers program has already blown through its initial $1 billion in funding — money that was projected to last though October. House lawmakers rallied with rare speed Friday to pump an additional $2 billion into the program, just hours before they departed for a five-week recess.

Supporters of the program, lining up behind Michigan’s powerful delegation, argue that it offers a slew of economic and environmental benefits befitting both the recession and the threat of climate change. On the House floor before the vote, Speaker Nancy Pelosi (D-Calif.) called the extension “a very positive, bipartisan initiative to help our auto industry, to help consumers, to grow our economy, to do it in an environmentally sound way.”

The House vote was 316 to 109, with 77 Republicans favoring the bill and 14 Democrats opposing it.

Among those 14 Democrats was Rep. Earl Blumenauer (Ore.), who said afterward that he felt “uncomfortable” voting to extend a young program around which so little is known. “We don’t know actually what we’ve been getting,” Blumenauer said in a phone interview. “We want to see the data.”

He’s not alone with that request. On Friday, Sens. Dianne Feinstein (D-Calif.) and Susan Collins (R-Maine) sent a letter to Transportation Secretary Ray LaHood urging the administration to release more data to inform Congress’ next move on cash for clunkers. While the program has proven itself to be an effective catalyst for vehicle sales, the lawmakers wrote, “Congress needs this data in order to determine if the fleet modernization program delivered significant fuel economy gains and oil savings.”

The skeptics have some reason to be wary. The latest official DOT figures indicate that, through Tuesday, less than $69 million of the initial $1 billion had been spent to facilitate roughly 16,350 vehicle sales. About 62 percent of those purchases were for new cars — a good sign in the eyes of environmentalists interested in minimizing the number of trucks and SUVs on the road. But until further analysis reveals what trades were encouraged by the subsequent $931 million, some lawmakers and public interest groups oppose the additional funding.

Lena Pons, policy analyst at Public Citizen’s Congress Watch Division, said the popularity of the program comes as little surprise. Who, after all, wouldn’t want a $4,500 gift from Washington? But popularity is no indication that the program is meeting its stated goals. “Before appropriating any additional funds,” Pons said in a statement, “Congress should study whether the program is working.”

The Senate is expected to take up the cash for clunkers extension next week, and already a small, bipartisan contingency is threatening to block the proposal. On Thursday, Feinstein and Collins issued a statement arguing that any renewal of the program “must go further in advancing the goals of better fuel efficiency and greater emissions reductions.”

“We will not support any bill that does not meet these goals,” the senators said.

On Friday, they got some more backing when Sen. John McCain (R-Ariz.) announced his intention to filibuster the bill.

There are also concerns, both on and off Capitol Hill, about the source of the funding. The $2 billion was siphoned from stimulus funds earmarked for a federal loan program encouraging the use of environmentally friendly technologies.

After the House vote, President Obama gave a short speech vowing to work with Congress to replace that funding sometime “down the road.”

Under the current program, drivers can get between $3,500 and $4,500 when they trade in their gas-guzzling cars, trucks and SUVs for new vehicles with better fuel efficiences. Yet the efficiency thresholds were set so low that consumers can trade in their old clunker for a brand new clunker — a boon for the automakers and dealers, but hardly a way to reduce the greenhouse gasses that contribute to global warming.

“They weren’t set very high,” Blumenauer said of the mileage guidelines, “so it wasn’t getting the worst of the worst off the roads.”

Feinstein and Collins, along with Sen. Charles Schumer (D-N.Y.), have sponsored a competing bill that sets stricter fuel efficiency thresholds for the newly purchased vehicles. The lawmakers say their proposal would result in oil savings that trump the existing program by more than 30 percent.

When the initial $1 billion program passed the Senate in June, Feinstein told reporters that Senate Majority Leader Harry Reid (D-Nev.) had given her “absolute assurance” that any extension would be altered so that the fuel efficiency requirements were more stringent. With the House leaving town, however, Reid’s office indicated Friday there’s little chance that Senate leaders will alter the House-passed bill, particularly with Obama urging quick passage of the existing extension.

That’s bad news in the eyes of environmentalists, who worry that the program is following the path of a similar initiative in Germany, which went from a 1.5-billion-euro program to a 5-billion-euro program in just six months.

“This is turning into a methadone program for addicted automakers,” Becker said. “They have no incentive to turn it off.”

Just the other day, when I was writing about the case of Jewel v. NSA (and responding to the Columbia Journalism Review’s criticism that no one was covering this important case about warrantless wiretapping), I remarked that while everyone’s been up in arms about the Obama administration’s claiming the case should be dismissed because it would reveal “state secrets” — the same argument the Justice Department has made repeatedly in previous cases alleging illegal wiretapping and abusive interrogation programs — no one seemed to notice that the Jewel case charges that the wiretapping program is still going on.

Here’s a quote from the government’s brief asking the federal court to dismiss the case:

Plaintiffs in this action allege that the Government, through the National Security Agency (“NSA”), is undertaking an “illegal and unconstitutional dragnet communications surveillance in concert with major telecommunications companies,” and that NSA has indiscriminately intercepted the content of communications, as well as the communications records, of millions of ordinary Americans.

Interestingly, nowhere in its brief does the government deny that.  It just argues vehemently that the court should dismiss the case.

So should we really be all that surprised that, as James Risen and Eric Lichtblau report in The New York Times today, the charges may turn out to be true?

As Spencer’s already mentioned, Sen. Dianne Feinstein (D-Calif) and the Senate Intelligence Committee today promised to investigate. They might want to call the Electronic Frontier Foundation and their clients in the Jewel case as witnesses.

That’s welcome news for all of us who’ve been eager to learn more about just what went on in the CIA and how it could have led to policies like “extraordinary rendition” — i.e., transfer to torture — and the now-notorious interrogation abuses at Abu Ghraib, Bagram and Guantanamo Bay.

So now that there’s been a thorough review of Pentagon policies by the Senate Armed Services Committee (though its final report was never released publicly), and now there will be a critical review of what happened in the intelligence agencies.  So where’s the Senate Judiciary Committee?

As I reported earlier today and yesterday, Sen. Patrick Leahy (D-Vt.) has been going around talking and holding hearings about the possibility of creating a broad bipartisan truth commission, one reminiscent of South Africa’s Truth and Reconciliation Commission, or here in the United States, the 9/11 Commission. But as Leahy is rapidly learning, he’s facing mighty opposition — not only among Republicans but even among Democrats, few of whom bothered to even show up to his hearing yesterday to lend their support.

So why not just pull his own committee together to conduct an investigation of what happened at the Justice Department: who wrote what memos, at whose request, and what did they say? (Although as I’ve written before, some Office of Legal Counsel memos have been released, but many critical documents concerning detainee treatment have not.)

While the Bush administration was apparently misusing the Justice Department to carry out unlawful policies, Leahy — who chairs the Judiciary Committee — didn’t do very much to investigate. Sure, some questions came up during various confirmation hearings and when the committee questioned Inspector General Glenn Fine about his reports of politicized hiring at the Justice Department or the role of the FBI. But why no comprehensive hearings hauling in the former attorneys general and their staff, and OLC lawyers like John Yoo, Jay Bybee and Stephen Bradbury, to reconstruct how the torture and other abuse of detainees came to be legally-authorized U.S. policy?

Leahy presumably would have the power to obtain all those OLC memos still being withheld, and to get some concrete answers.  Combine the outcome of that process with what Sen. Carl Levin (D-Mich.) did with the Armed Services Committee and Sen. Dianne Feinstein (D-Calif) is now pursuing with the intelligence committee, and we could have some real answers — even if the far-reaching “truth commission” that Leahy proposed never wins enough support to get off the ground.

Holder replied that it’s “antithetical to everything the Justice Department stands for” and added that this wasn’t something he’d allow if he was attorney general.

Feinstein also brought up the Army Field Manual — a round-about way of talking about torture — which Holder hedged on, but ultimately said he supports using the manual as the basis for interrogation rules.

Sen. Orrin Hatch (R-Utah) is up next, but has already stated that he supports Holder’s nomination.