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.

Lots of Democrats now concede that Congress overreacted a bit after the 9/11 terrorist attacks to give sweeping authority to the FBI to conduct various kinds of sneaky searching and snooping without the usual kinds of reasonable suspicion of criminal wrongdoing normally required. But Democratic lawmakers can’t seem to agree whether the terrorists ever really act alone.

The whole idea of lone wolves prowling the forest seeking to attack innocent Americans apparently sprang up after some Republicans claimed that the FBI hadn’t been able to access the computer of Zacharias Moussaoui, the alleged 20^th hijacker, because it couldn’t connect him to a known terrorist group. The Foreign Intelligence Surveillance Act, or FISA, requires the government to show that the target of surveillance has some connection to a foreign terrorist group in order to obtain a warrant. In response, the “lone wolf” theory — together with section 6001(b) of the Patriot Act — was born.

But in 2003, as Julian Sanchez writes in Reason magazine, the Senate Judiciary Committee revealed that in fact, the FBI’s failure to get a warrant wasn’t because Congress hadn’t believed in and adequately prepared for lone wolves, but because the FBI had failed to connect the dots: related reports from different FBI field offices that should have alerted any reasonably informed FBI agent that Moussaoui was linked to terrorism were ignored, and the FBI failed to use the powers it had. Still, Congress went ahead and granted it more.

Now, under its “lone wolf” provision, the Patriot Act “appears to permit ‘lone wolves’ to be targeted merely on the basis of advocacy,” writes Sanchez. “Finally, while the criminal law requires ‘preparation’ for terrorism to include a ’substantial step’ in the direction of carrying out an attack, the Justice Department has suggested that FISA’s definition does not. Thus, not only may lone wolf suspects be monitored despite the absence of ties to a terror group, they may not even need to be engaged in criminal conduct.”

At a recent Senate Judiciary Committee hearing, Justice Department official David Kris acknowledged that the FBI has never actually used the “lone wolf” provision, but insisted that it’s necessary in case it decides it needs it in the future.

The purpose of FISA, of course, is to expand law enforcement’s surveillance powers beyond what they can usually use to monitor ordinary criminal suspects. But Sanchez argues that the “lone wolf” provision seems to blur that distinction: “The lone wolf provision effectively aims a Howitzer at a gnat, allowing souped-up tools designed for Al Qaeda and the KGB to be used against people more reasonably seen as criminal suspects-and in the process, against any Americans who happen to have interactions with them.”

Passing both the FISA Amendments Act last year and the telecom immunity provision within it was a huge blow to Americans’ privacy. The grant of immunity to giant telecommunications companies was a grievous insult to the concept of privacy in America and we welcome the effort to reinstate Americans’ ability to challenge government spying and malfeasance. We urge Congress to repeal the immunity provision of the FISA Amendments Act quickly. Otherwise, Americans may never learn the truth about what the companies and the government did with our private communications.

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.

From the report itself, John Yoo’s Office of Legal Counsel memo — and the lightning-fast reporting of Spencer Ackerman, Marc Ambinder and others on Friday — we now know that President George W. Bush and Vice President Dick Cheney, aware that ignoring the Foreign Intelligence Surveillance Act and the Fourth Amendment to the U.S. Constitution might come back to bite them later, sought the drafting of a legal opinion that would approve the president’s secret surveillance program and shield them from later attack.

The fact that the White House sought the assistance of Deputy Assistant Attorney General John Yoo in the OLC, though is itself evidence that the White House was trying to get around, rather than comply with, the law.

As I’ve noted before, legal memos justifying an unreasonable or inaccurate legal position don’t necessarily provide a “golden shield” for the executive.

Yoo, after all, was known when he was hired as the Berkeley law professor and staunch Federalist Society member who held theories on executive power that were far outside the legal mainstream. And the memos and academic analyses he then proceeded to write were so extreme and so mischaracterized law and history in an effort to reconcile conservative “originalist” principles with his own aggressive view of an all-powerful president as Commander-in-Chief that they’ve been characterized as an “outrageous theory of presidental dictatorship” by Yale University law professor Jack Balkin and as “simply hooey” by Marty Lederman at Georgetown (now in the Office of Legal Counsel in the Obama administration).

The inspectors general report details how Yoo and the administration ignored parts of the FISA law that conflicted with his theory, for example, and made the outrageous argument that a warrantless search doesn’t violate the Fourth Amendment’s prohibition on “unreasonable” searches and seizures because it can’t be “unreasonable” for the president to authorize it in wartime. Why it’s “reasonable” to prevent even secret judicial review of such searches is never explained.

For an academic to hold extreme views of executive power, of course, is arguably a matter of academic freedom, and even a form of creative theorizing that one might admire. (Although some of Yoo’s Berkeley colleagues, such as economist Brad DeLong, among others, have described his theories as reaching so far beyond the bounds of creative academic theorizing as to be simply dishonest and undeserving of that protection.)

But Yoo’s memos at OLC were not part of an academic exercise; they were making policy. Setting aside for a moment the potential culpability of Yoo himself, the more important point here is that, as the inspectors general report makes clear, the White House specifically sought him out and excluded his superiors, ignoring the usual chain of command in the Justice Department, apparently because they knew that John Yoo would give them the legal opinions that they wanted to hear.

That is not the purpose of the Office of Legal Counsel, as Dawn Johnsen, the Obama nominee to head that office has repeatedly made clear, along with more than a dozen other alumni of that office.

As Johnsen wrote in a law review article describing the ten “Guidelines” that should govern the Office of Legal Counsel: “OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies … In short, OLC must be prepared to say no to the President.”

That the president and vice president apparently chose someone who they knew in advance would not say no to the president is more than an abuse of that legal office; it strongly suggests an intentional and unlawful abuse of executive power.

The latest news accounts that Attorney General Eric Holder is leaning toward appointing an independent prosecutor suggest he may finally be starting to reach the same conclusion.

A year later, the report is complete, and I’ve just gotten a copy of it. What does it say? I’m still reading it, but one thing it says is that the CIA’s involvement in the program is deeper than has been reported. And one interesting bonus fact: the report calls the program the “President’s Surveillance Program,” rather than the manipulative “Terrorist Surveillance Program” handle the Bush administration gave the program when it became public in order to put critics in a tight spot. (”What? You oppose surveillance for dangerous terrorists who want to kill your grandchildren????”)

More as I read the report.

Update: Here’s the basis for switching up the nomenclature, and it comes with a point of pride. Two years ago, in July 2007, Paul Kiel and I tried to make sense of then-Attorney General Alberto Gonzales’ congressional testimony about the “Terrorist Surveillance Program” and concluded that there must have been more than one secret surveillance program authorized by President Bush beginning in 2001. Today the IGs’ report bears us out:

The specific intelligence activities that were permitted by the Presidential Authorizations remain highly classified, except that beginning in December 2005 the President and other Administration officials acknowledged that these activities included the interception without a court order of certain international communications where there is “a reasonable basis to conclude that one party to the communication is a member of al-Qai’da, affiliated with al-Qai’da, or a member of an organization affiliated with al-Qai’da.” The President and other Administration officials referred to this publicly disclosed activity as the “Terrorist Surveillance Program,” a convention we follow in this unclassified report. We refer to other intelligence activities under the Presidential Authorizations as the “Other Intelligence Activities.” The specific details of the Other Intelligence Activities remain highly classified, although the Attorney General publicly acknowledged the existence of such activities in August 2007. Together, the Terrorist Surveillance Program and the Other Intelligence Activities comprise the PSP.

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Here’s an excerpt:

Feingold: Is there any doubt in your mind that the warrantless wiretapping program was illegal?

Holder: As it was put together at the t time it was certainly unwise … It now exists with congressional approval, so the concerns I addressed in that speech [referring to a speech at the American Constitution Society before he became Attorney General] no longer exist.

Feingold: I asked if it was illegal, not unwise.

Holder: I thought actions the administration had taken were inconsistent with the dictates of FISA.  And as a result I thought the policy was an unwise one.  The concerns I addressed then have been remedied by Congress.

Feingold: Was it illegal?

Holder: I said it was inconsistent with the dictates of FISA.

Feingold: That sounds awfully mild compared to a very clear statement and very clear principle here … Many people like me believe that if the statute is that explicit then it is unconstitutional for the president and illegal for the president to override the express will of the Congress.

Holder: I think what I’m saying now is consistent with what I’m saying in the speech.

While it seems clear that Holder still thinks the previous administration violated the law (I assume that’s what “inconsistent with the dictates of FISA” means), Holder is obviously reluctant to use the word “illegal,” likely because it suggests that he, as attorney general, might have to prosecute someone for it.

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Judge Vaughn Walker in San Francisco dismissed the cases because Congress explicitly gave the telecom companies immunity from civil suits in a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA.

Although the customers who sued, represented by the Electronic Frontier Foundation and the American Civil Liberties Union, claimed that the immunity provision of the law was unconstitutional, Judge Walker disagreed.

Significantly, however, he noted that at least one part of the argument presented “a close question,” leaving open the possibility that his decision could be reversed on appeal.

The lawyers who brought the case said yesterday that they plan to pursue that course.

“We’re deeply disappointed in Judge Walker’s ruling today,” Cindy Cohn, legal director of the Electronic Frontier Foundation, told Keith Perine at CQ Politics. “The retroactive immunity law unconstitutionally takes away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

Judge Walker also specifically wrote that his decision in the case against the telecoms does not foreclose other cases based on similar facts filed against the government.

“The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities,” Vaughn wrote.

Meanwhile, in a separate ruling in the Al-Haramain case, Judge Walker ruled that the defunct Islamic charity can proceed with its case against the government even without the document that the Obama administration has been trying so desperately to conceal. That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.

A hearing on the merits of the case — whether the government broke the law when it wiretapped Al-Haramain and its lawyers without a warrant — is scheduled for September 1.

A ruling from Judge Walker last July that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA, does not bode well for the government.

Jon Eisenberg, Al-Haramain’s lawyer, summed it up at the time this way: “Judge Walker ruled, effectively, that President George W. Bush is a felon.”

Leave aside for a moment the merits of the case. Right now, the CIA, at the behest and with the encouragement of the Bush administration, is having its dirty laundry aired through the disclosure of the Office of Legal Counsel torture memos. There’s the prospect — possibly not the likelihood, but at least the prospect — of another congressional commission into past the agency’s interrogation and detention activities during the Bush years. Certainly there’s a Senate intelligence committee inquiry under way. Cheney allies like Porter Goss, a former CIA director, are already warning that agency morale is cratering (which is ironic, since Goss came into the agency like a meatcleaver to purge supposed anti-Bush elements at CIA, but let’s leave that aside). It’s got to feel to Cheney like the end of “Battlestar: Galactica.” All this has happened before, and will happen again …

The question is whether Cheney will examine whether the Bush administration’s actions played any role in contributing to the prospective agency retrenchment. (Let’s stipulate for the sake of argument that such a thing will occur.) Again, leave aside the merits of the arguments for torture or against it. The fact is the Bush administration and the Tenet-era CIA leadership encouraged and blessed the agency to go very far outside the boundaries of what it was previously allowed to do. Never before was the CIA in the detention business. It did not maintain a corps of interrogators before 9/11. And there was never a legal redefinition of U.S. laws and treaty obligations about torture. The available evidence suggests that the congressional leadership of the Democratic Party was complicit in, at least, aspects of that arrangement.

But did Cheney think that the political situation was permanent? That the United States wouldn’t revisit the apparatus of interrogation and detention created in the aftermath of 9/11? Hadn’t the Bush administration placed the CIA out on a limb? Wasn’t it foreseeable that such a thing wouldn’t last forever?

Perhaps the lesson of the Church/Pike era, and this current one, isn’t that Congress ought not to intrude onto the prerogatives of the executive, but rather that the executive shouldn’t require the CIA or other agencies to break/stretch/redefine the law.