Rep. John Conyers (D-Mich.) (WDCpix)

Eight years after it was passed, the USA Patriot Act remains among the most controversial pieces of counterterrorism legislation in the so-called “war on terror.” On December 31 of this year, some of its more controversial provisions will expire, forcing Congress to revisit it and decide whether to reauthorize the expiring provisions, amend them, or re-work the entire law.

The sections set to expire give the government the authority to access business records, operate roving wiretaps and conduct surveillance on “lone wolf” suspects with no known link to foreign governments or terrorist groups. A justice Department official last week told Congress that the Obama administration supports their renewal. Assistant Attorney General Ronald Weich wrote to Senator Patrick Leahy (D- Vt.) that the administration would consider stronger civil rights protections “provided that they do not undermine the effectiveness of these important (provisions).”

Illustration by: Matt Mahurin

But at a House Judiciary Committee hearing on Tuesday, it was clear that Democrats don’t uniformly support the White House on that. Some Democrats on the committee were still bitter that some Republicans back in 2001 had pushed aside a bipartisan version of the bill produced by the Judiciary Committee in favor of a version substantially revised and altered by the Rules Committee, led by then-chairman David Dreier (R-Calif.).

“Then-Chairman Dreier 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” and that, according to committee Chairman John Conyers (D-Mich.), created problems that the bill he’d approved would have prevented.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act,” Rep. Jerrold Nadler (D-NY) echoed later in the hearing. “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.

The fight over the bill appears to be as partisan today as ever. At the House hearing, Democrats and their witnesses warned that provisions of the law that allow “roving wiretaps” of different communications devices used by unnamed suspects, or electronic surveillance of suspects with no affiliation to known terrorist organizations, violate constitutional safeguards against unreasonable searches and seizures. And a “gag order” provision of the bill, they complained, violate the First Amendment by preventing the recipient of an FBI-issued National Security Letter, which can request customer information from businesses, from disclosing to their customers that the information was requested.

While Democrats in the House yesterday cast these provisions as unnecessary and abusive, Republicans deemed them critical to national security.

“We must not be lulled into a false sense of security,” warned Rep. Lamar Smith (R-Texas). “The threat remains high,” he added, and proceeded to list about a half a dozen terrorist plots that were either carried out or planned but foiled by the FBI since September 11, 2001, including the 2004 Madrid train bombings, the 2008 terrorist attacks in Mumbai, and the thwarting of what he called a “plot to kill U.S. soldiers at the Fort Dix Army base” in 2007.

But several witnesses, such as Suzanne Spaulding, a national security lawyer and former staff director of the House Permanent Select Committee on Intelligence, testified that parts of the law such as the “lone wolf” provision, which allows the FBI to monitor suspects with no connection to foreign terrorist organizations, “undermines the policy and constitutional justification for the entire [Foreign Intelligence Surveillance Act] statute. “This extraordinary departure from the Fourth Amendment’s warrant standards is justified only in investigation of foreign powers or their agents,” she said. The “lone wolf” provision would allow the government to spy an someone suspected of participating in terrorism but where the evidence is not strong enough to meet the stricter standards for obtaining a regular warrant from an ordinary federal court.

Michael German, a former FBI agent and now policy counsel at the American Civil Liberties Union, noted that the FBI inspector general himself in 2007 concluded that the Patriot Act had been abused. Section 505 of the Act increased the number of officials who could authorize national security letters, seeking private information about certain businesses’ customers, reduced the standard necessary to obtain information with them, to the point where information could be collected about people who are not even suspected of having done anything wrong, testified German.

Even with such broad latitude, German testified, the Inspector general reports “confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities.” The inspector general reported that the FBI’s record-keeping was so poor it didn’t know how many national security lettesr it had issued, and it often sought private information that it was not entitled to.

“Most troubling, FBI supervisors used hundreds of illegal “exigent letters” to obtain telephone records without national security letters by falsely claiming emergencies,” German added in written testimony submitted to the subcommittee on Tuesday.

And Thomas Evans, a former Republican Congressman from Delaware testified on behalf of the bipartisan Constitution Project that the section of the Act allowing the FBI to issue National Security Letters without a court order and accompanied by gag orders creates “great potential for abuse.” Last week the Constitution Project sent a letter to the Senate Judiciary Committee, signed by 26 policy experts across the political spectrum, seeking major reforms to the Patriot Act.

On Tuesday, Todd Hinnen, Deputy Assistant Attorney General in the National Security Division of the Justice Department testified that many of the problems identified by the Inspector General and others have been solved. “Since that time, FBI has put in a new data subsystem governing those [national security letters],” he said, adding that the National Security Division of the Justice Department has increased its oversight and Congress and the Inspector General retain their oversight authority.

Hinnen testified further that the expiring Patriot Act provisions were absolutely necessary tools for law enforcement to pursue terror suspects. “We feel that these are very important investigative authorities and that it would be very unfortunate to allow them to lapse. The administration firmly supports renewal before December 31 so there’s no gap in the investigative abilities of the government.”

Conyers was not impressed. “You sound like a lot of people from DOJ that have come over here before, and yet you’ve only been there a few months,” he said, after Hinnen said he started in the job on January 21. “Do you think that’s a good thing or a bad thing?” Conyers asked. As Hinnen hesitated, Conyers added: “You don’t have to respond to that.”

On Wednesday, the Senate Judiciary Committee will hold its own hearing on the Patriot Act. That promises to be equally contentious. Already, several senators have introduced bills to reauthorize and amend expiring provisions of the Patriot Act, although there’s already evidence of disagreement among Senators on the same side of the aisle.

Last week, Senator Russ Feingold (D-Wisc.), with co-sponsorship from Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR), introduced a bill to narrow the Patriot Act, called The Judicious Use of Surveillance Tools In Counterterrorism Efforts Act, or the JUSTICE Act. The Act would amend not just the expiring provisions but would add protections for privacy civil liberties in each section fo the Patriot Act and other surveillance laws. It would also repeal the retroactive immunity granted to telecommunications companies included in the FISA Amendments Act passed last year.

The Obama administration has supported and defended in court this immunity for telecom companies.

A bill introduced on Tuesday by Sens. Patrick Leahy (D-Vt.), Benjamin Cardin (D-Md.) and Ted Kaufmann (D-Md.), does not repeal the immunity provision, and makes more modest amendments to the Patriot Act. It extends all three of the provisions set to expire this year, but expands reporting requirements to allow Congress to monitor how the administration is using the law.

The problem? The First Amendment’s pesky “Establishment Clause.” Read Brayton’s story here.

Judge Sonia Sotomayor (Zuma Press)

Most commentators and reporters have assumed that when it comes to Judge Sonia Sotomayor’s record, there’s little to suggest how she might rule on critical matters of executive power and national security that are sure to be among the most controversial issues before the court in the next few years.

One exception to that is a Fox News report on Tuesday, which cites Sotomayor’s March 2003 lecture to a class at Indiana University Law School, where she said, “We have suspected enemy combatants detained in secret and given different process than criminals. One can certainly justify that type of detention under precedents and current law.”

Illustration by: Matt Mahurin

To Lee Ross at Fox News, this was a pronouncement “that could draw criticism from liberal groups.” But in the context of the entire lecture, which Sotomayor provided, along with a mass of other materials, to the Senate Judiciary Committee on Monday evening, the statement appears to be simply an explanation to law students of where the courts had come down on the issue so far. The issues would eventually reach the Supreme Court, which would affirm the government’s right to detain certain enemy combatants indefinitely. But at that time only a district court from the Southern District of New York and the U.S. Court of Appeals for the Fourth Circuit had addressed the questions.

Notably, The New York Times on Wednesday focuses on a different part of the lecture in which Sotomayor expresses skepticism about the government’s authority under the USA Patriot Act “to impose nationwide wiretaps with little judicial supervision” and to monitor use of the Internet.

While reporters and bloggers have noted that Sotomayor has never worked in the federal executive branch and has sat on courts that don’t hear many executive power challenges, her record from the bench is not a blank slate. In fact, just last year, she joined two other judges in ruling that sections of the USA Patriot Act regarding national security letters are unconstitutional. And in the case of the Canadian former detainee Maher Arar, arrested while changing planes at John F. Kennedy airport and rendered by U.S. authorities to Syria to be tortured, he claims, Judge Sotomayor played an active role in a heated two-hour argument before the full 2nd Circuit Court of Appeals in December. (The court has not yet issued its opinion.) Both of those cases — largely overlooked by the media as indicators of Sotomayor’s inclinations on executive power — suggest that Sotomayor will be no wallflower in cases challenging unchecked executive authority in matters of national security.

What Judge Sotomayor actually believes the law is when it comes to the treatment and detention of suspected terrorists, and the type of justice they’re afforded, is critically important to how the Supreme Court will rule on these issues in the coming years, however. As Charlie Savage wrote recently in The New York Times, the impact of a new justice on presidential power could make all the difference. “Important rulings on executive authority — striking down military commissions and upholding habeas corpus rights for Guantanamo detainees — have been decided by a five-vote majority, including Justice Souter, on the nine-member court,” Savage explained. Justice Souter was a strong proponent of limits on executive power, voting to strike down the first incarnation of military commissions created by President Bush, and voting in favor of providing Guantanamo detainees’ habeas corpus rights. A new judge could swing the majority the other way. And both of those issues — the new Obama military commissions and habeas rights for detainees at other U.S. prisons abroad, such as Bagram — are likely to reach the Supreme Court in the next few years.

“To my mind, this is the most significant issue for the court, especially given the radicalism of Roberts and Alito on presidential supremacy,” wrote Andrew Sullivan on his blog at The Atlantic recently.

In the 2008 ruling Doe v. Mukasey, Judge Sotomayor joined an opinion written by Judge Jon Newman that struck down parts of the USA Patriot Act. The law put a “gag order” on companies that received a National Security Letter from the FBI requiring the company to turn over information about their customers, and required the recipient of the letter to go to court to have the gag order lifted. The three-judge panel of the 2nd Circuit, including Sotomayor, ruled that it was the government’s burden to justify to a court why it had to silence an NSL recipient. The court also invalidated sections of the Patriot Act that required judges to assume as true the FBI’s claims about what would harm national security.

As the court wrote: “There is not meaningful judicial review of the decision of the Executive Branch to prohibit speech if the position of the Executive Branch that speech would be harmful is ‘conclusive’ on a reviewing court, absent only a demonstration of bad faith. … The fiat of a governmental official, though senior in rank and doubtless honorable in the execution of official duties, cannot displace the judicial obligation to enforce constitutional requirements. ‘Under no circumstances should the Judiciary become the handmaiden of the Executive.’”

While it’s hardly a radical position for a federal court to reject a government’s arguments that its positions are unreviewable by any court, it does suggest that Sotomayor is willing to stand up to broad executive claims of unreviewable power in matters of national security. That’s likely to come up in cases raising the matter of state secrets, “preventive detention” of suspected terrorists and the creation of military commissions.

Sotomayor herself was explicit about her suspicion of the government’s assertion of unreviewable power in the national security context during the argument in Arar v. Ashcroft. Sotomayor wasn’t physically present in the courtroom, but her larger-than-life image was beamed on a screen via satellite teleconferencing technology, giving her what one blogger called “a Star Trek immensity.”

The government’s lawyer, Jonathan Cohn, was attempting to argue that the case is so “inextricably bound” with matters of foreign policy and national security that the courts should just stay out of it, since those are the exclusive domains of the executive branch.

Sotomayor, like many of her colleagues, was skeptical. In her most striking exchange with the government’s lawyer, she asked, “are you saying that there should be no Bivens action [a right to sue federal officials] for any torture by a federal agent?”

Cohn quickly said no, that’s not the government’s position, unless the issue is “fraught with national security implications.”

Sotomayor pressed the point: “So the minute the executive raises the specter of foreign policy or national security, it is the government’s position that that is a license to torture anyone, a U.S. citizen or a foreign citizen? License meaning you can do so without any financial consequence. That’s your position?”

Although Cohn claimed again that he was not saying that, Sotomayor had correctly seized upon the implication of his argument — that the government cannot be sued for torture so long as it claims that the suit raises foreign policy or national security concerns. And the nature of her questioning suggested strongly that she did not agree.

Here’s the authoritative blog’s take on Sotomayor’s opinions on key cases involving abortion, the First and Second Amendments, voting rights, civil rights and international law.

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Attorney General Eric Holder and Katie Couric (CBS News)

In an interview that aired Wednesday night on the CBS Evening News, Attorney General Eric Holder suggested to Katie Couric that the Obama administration is unlikely to depart dramatically from the Bush administration’s position on the use of the state secrets privilege, noting just one case out of about 20 currently under review in which the Justice Department is seriously considering changing its stance. He did not say which case that was.

Most likely, the reversal won’t come in the case of Jewel v. NSA, because Holder’s Justice Department Friday again broadly asserted the “state secrets” privilege as a grounds for dismissing the case, brought by AT&T customers alleging the government used dragnet surveillance to monitor the domestic telephone communications of millions of ordinary Americans.

Illustration by: Matt Mahurin

The Department of Justice – first under President George W. Bush and now under President Obama – has repeatedly invoked this executive privilege, which allows the president to prevent public disclosure of evidence in court by claiming that its release would endanger national security. And increasingly, the Department of Justice has used the privilege not only to prevent public disclosure of documents, but to dismiss entire cases brought by victims of illegal policies, claiming that the subject matter of the case itself is a state secret, and that even the judge shouldn’t review the documents in private. A recent report by the Constitution Project, a bipartisan think tank, found that the Bush administration used the privilege to seek “blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs” in 92 percent more cases per year than in the previous decade.

Last night, Holder told Couric that after he took over the attorney general’s office, he asked lawyers in the Justice Department to see “if there’s a way where we can be more surgical, whether there is a way in which we can share more information.” The state secrets privilege, he said, is appropriately invoked “at certain times”, but “I want to make sure that we only do it where it’s absolutely necessary. I would only apply the doctrine where national security was at stake, where the lives of the American people were at stake,” he said.

Yet it’s difficult to see that standard at work in the recent cases where the Justice Department has invoked the state secrets privilege.

For example, in a federal court in San Francisco on Friday, the Obama Justice Department moved to dismiss the Jewel case based in part on the state secrets privilege. The AT&T customers who filed suit, represented by the Electronic Freedom Foundation, claim the National Security Agency illegally intercepted their calls and obtained their phone records as part of a broad-reaching, ongoing national security surveillance program and in violation of the First and Fourth Amendments of the United States Constitution, the separation of powers doctrine and federal statutes.

In its legal brief filed with the court, the government’s lawyers claim the case must be dismissed because allowing it to go forward at all would disclose information about the NSA surveillance program, which is itself a state secret. Disclosure of the information the customers want to see, claims the government, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in their filing.

This is the second attempt by ordinary AT&T customers to learn more about the government’s secret domestic wiretapping program and to hold the government or a company that assisted it accountable. An earlier case, also brought by the Electronic Frontier Foundation against AT&T itself, was quashed when, after the Bush administration had made the state secrets arguments in court, Congress passed a law granting immunity to AT&T and other telecommunications companies from lawsuits from customers who claimed the companies helped the government spy on them.

The broad use of the state secrets privilege to dismiss entire court cases challenging unlawful government actions has outraged civil liberties and open government groups such as the American Civil Liberties Union and Center for Constitutional Rights. Such advocates had counted on Obama’s promises in the first days of his presidency to run a more transparent government than his predecessor. But the Obama Justice Department already, in several cases seeking information about Bush administration counter-terrorism activities, has invoked the state secrets privilege to prevent the disclosure of critical evidence.

For example, in Al-Haramain Islamic Foundation v. Obama, which TWI has been following, the Obama administration asserted that the Bush administration’s domestic warrantless wiretapping program, or Terrorist Surveillance Program, is a state secret that cannot be revealed without endangering national security. Never mind that President George W. Bush had himself acknowledged the program’s existence, and President Obama has said it is no longer operative.

And in Mohammed v. Jeppesen Dataplan, which TWI first wrote about in January, the Obama administration asserted the state secrets privilege to seek dismissal of a case brought by five victims of the Bush administration’s “extraordinary rendition” program — which transferred prisoners to foreign countries for interrogation under torture. In that case, the victims, including Binyam Mohamed, the British resident I’ve written about, sued the subsidiary of Boeing that allegedly assisted the CIA in its torture program. The Bush administration immediately swooped in and convinced the federal court to dismiss the case because the now-defunct extraordinary rendition program is supposedly a “state secret.” In February, the Obama administration, to the surprise of even some of the judges sitting on the U.S. Court of Appeals for the Ninth Circuit that day, continued to maintain that argument.

During last night’s interview, Couric asked Holder whether he thought the state secrets doctrine had been abused by the Bush administration.

“Well, I don’t know,” said Holder. “On the basis of the two, three cases we’ve had to review so far, I think that the invocation of the doctrine was correct. We – reversed – are in the process of looking at one case. But I think we’re very likely to reverse it.”

Presumably, the three cases he’s referring to are the Jewel, Al-Haramain and Jeppesen Dataplan. But Holder went on to say that there have been more than 20 such assertions in cases that are still open. He added that a report on the Justice Department’s use of the privilege is being prepared, and his “hope is to be able to share the results of that report with the American people.”

Marc Ambinder, who obtained an early transcript of the interview, wrote Wednesday in The Atlantic that a senior Justice Department official “declined to elaborate” on in which case Holder was planning to reverse the department’s position.

Congress, meanwhile, may not leave the matter in Holder’s hands. In February, Rep. Jerold Nadler (D-N.Y.) and several co-sponsors introduced the State Secrets Protection Act of 2009, which would require a federal judge to look at the disputed evidence rather than dismiss the case outright based solely on the government’s assertion that its disclosure would endanger national security. A parallel bill was introduced in the Senate by Sen. Patrick Leahy (D-Vt.) and has six co-sponsors.

I marvel over Dershowitz’s new-found perspective on academic freedom. Can this be the same Alan Dershowitz who launched a massive and successful campaign against Norman Finkelstein to deny him tenure at DePaul University because of his criticism of the Israeli government and of Alan Dershowitz himself? In the Dershowitz perspective, academic freedom apparently shields those whose viewpoints are very close to his own, but not his critics.

Dershowitz was one of the early supporters of the idea that torture might very well be a good idea on people we suspect of terrorism — only, of course, in that theoretical ticking time bomb case, where interrogators somehow know that the person they’re torturing could save us all, if they just torture him brutally enough.

None of this has affected Dershowitz’s tenured position at Harvard — but then, he wasn’t writing memos for the Department of Justice authorizing torture and other techniques of brutality that plainly violated domestic and international law.

For now, Yoo is a “Distinguished Visiting Professor of Law” at the illustrious Chapman University School of Law in Orange County, where his friend, Dean John Eastman, had to issue a public apologia explaining the appointment, saying that even if most scholars think Yoo got the law wrong in his memos authorizing torture, some disagree, or think he “at least made a fair stab at it.”

That’s a pretty low bar to set for a tenured professor at one of the nation’s top law schools. And if the Department of Justice ever issues that internal Office of Professional Responsibility memo that’s still awaiting Attorney General Eric Holder’s approval, Yoo may find himself depending on the kindness of his friends in Orange County for far longer than he anticipated.

As I noted earlier today, Ogden’s confirmation had been held up by some Senate Republicans, who threatened a filibuster, largely on concerns that as an attorney in private practice he had represented Playboy Enterprises, among others, in First Amendment cases that led critics to claim he protected pornographers at the expense of children. They also objected that, because he clerked for Supreme Court Justice Blackmun, the author of Roe v. Wade and signed onto amicus briefs that sought to protect the right to an abortion, that he favored abortion over, well, children.

Update:  Here’s what People For the American Way president Kathryn Kolbert had to say about the confirmation, from a statement released this afternoon:

“It’s incredible to think that Senate Republicans considered filibustering David Ogden’s nomination even for a second. Ogden is a widely respected attorney with previous Justice Department experience and bipartisan support. But to listen to some Republicans and Religious Right leaders talk about him, you could be excused for thinking that President Obama had actually nominated Larry Flynt.”

“In reality, Ogden is a seasoned lawyer and public servant whose hard work has earned him the support of the National District Attorneys Association, Fraternal Order of Police, National Center for Missing and Exploited Children, and many others. He is precisely the type of person we need at the helm of the Justice Department as it tackles the many challenges facing our nation. Fortunately a bipartisan majority of Senators saw past the smears directed at Ogden, but the obstructionist threats and extreme rhetoric from the most conservative Senators set a bad precedent for future nominations.”

As Phyllis Schafly’s Eagle Forum put it, the nominee should be rejected because “Ogden has built his career by advancing abortion, denying its harm, protecting pornographers while removing protections from children, and he believes that the U.S. Constitution should be interpreted in light of international law and U.N. statements.”

Ogden signed on to various amicus briefs in abortion rights cases, and represented clients such as Playboy Enterprises in First Amendment cases while in private practice.

Well, if the right is so concerned about the legal positions Ogden has taken defending clients as a partner in a private law firm, where were the conservatives when Attorney General Eric Holder was nominated, and the left complained about his previous defense of wealthy corporations accused of fraud, discrimination, and funding terrorism?

As I wrote during his nomination battle, Holder represented banana giant Chiquita Brands International against charges that the company paid millions of dollars to a right-wing Colombian paramilitary group that has killed thousands of civilians. Although some on the left were a little disgusted by that, the right was mostly obsessed with Holder’s role in the Marc Rich pardon when he was a deputy attorney general during the Clinton administration.

And as Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) noted in a statement yesterday:

“As recently as just over one year ago, every Senate Republican voted to confirm Michael Mukasey to be Attorney General of the United States.  That showed no concern that one of his clients, and one of his most significant cases in private practice as identified in the bipartisan Committee questionnaire he filed, was his presentation of Carlin Communications, a company that specialized in what are sometimes called “dial-a-porn” services.  It is more evidence of a double standard.”

It sure is.

Here’s the rest of Leahy’s statement, in which he calls Ogden “a good lawyer and a good man” and denies that he is “a pedophile and a pornographer.”

The city of Wasilla, Alaska, has posted online a collection of documents from Gov. Sarah Palin’s six-year stint as the town’s mayor, as well as her two previous years on the city council. You, too, can participate in the frequently thankless, soul-crushingly tedious, but occasionally rewarding (just ask TWI’s Laura McGann) work of poring over city financial reports, operations and capital budgets, and tax revenues.

You can even read the city’s official response(PDF) to inquiries about Palin’s alleged book-banning proclivities — though. I should warn you that you may be disappointed.

So go ahead, have at it! Be sure to email any potential Pulitzer-winning discoveries you unearth to mdelong(at)washingtonindependent(dot)com.

Just kidding.

Sort of.

As Mike noted, most of this stuff is mundane. We’re talking sewage-project proposals, road-paving measures and resolutions to recognize winners of local snow mobile races. Here and there, we’ve found some interesting tidbits. Here’s one more, caught by Aaron. Resolution No. 02-16, which, passed unanimously in July 2002, calls on the city council to recite the Pledge of Allegiance before council meetings – “especially the words ‘one nation, under God.’”

Consider that one month before the resolution passed the six-member, part-time city council, in June 2002, the Ninth Circuit Court of Appeals sided with Michael Newdow — ruling that the pledge’s language violated the First Amendment, which says “Congress shall make no law respecting an establishment of religion.”

Newdow had sued his daughter’s school district over reciting the “under God” phrase in classrooms, claiming it injured his daughter by listening to teachers assert there is a god.

Palin, a pro-life Christian who ran for mayor on her conservative values, wasn’t going to stand for that. An ardent supporter of the phrase, she defended it again four years later when running for governor.

The Huffington Post has found a story from 2006, where Palin told The Anchorage Daily News that if the pledge of allegiance was good enough for the founding fathers it was good enough for her. Of course, the pledge was first written in 1892. The “under God” language was added during the McCarthy era.