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 Feingold’s attempt to offer an amendment was withdrawn when Committee Chairman Leahy said he’d oppose it on procedural grounds.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

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.

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.

Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., says he will schedule a vote on Sonia Sotomayor’s nomination to the Supreme Court for July 21, though any committee Republican can hold over the vote for one week.

Referring to the abusive interrogation techniques used on detainees, Leahy wrote:

The techniques are wrong and their supposed legal rationale is just as bad. The idea that the Department of Justice’s Office of Legal Counsel would be used to contort our laws on subjects as serious as torture is appalling. The rationalization of these memos showed a willingness to ignore legal requirements as long as there is no clear mechanism of enforcement. These memoranda seem calculated to provide legal cover – a legal free pass – for these unlawful policies. The Justice Department was apparently being used to immunize government officials to conduct torture by defining it down and building in legal loopholes.

The apparent predetermined outcome of these legal memos raises the question of where the demand for this outcome and for approving these policies arose. Press accounts indicate that these were not the results of requests from CIA officers on the ground and in the field, but arose through pressure from senior administration officials in Washington.

Leahy’s truth commission could certainly get at those questions. But, as civil rights advocates and even some congressional staff privately acknowledge, so could a serious, focused investigation by the Senate Judiciary Committee, which Leahy chairs. It could reveal exactly the evidence he’s seeking, which in turn would reveal whether the conduct was criminal, as some allege, or merely shoddy lawyering and bad public policy.

When he held a hearing on his truth commission idea, Leahy faced an assortment of objections from Republicans and their witnesses about how Congress shouldn’t delegate its oversight power to an unaccountable commission that’s not authorized to sit in judgment of public officials or to bring prosecutions. (As I wrote before, Republicans at the hearing — including the newly-minted Pennsylvania Democrat, Sen. Arlen Specter — made a powerful case that if laws were broken, the perpetrators should be prosecuted, not just analyzed by some toothless commission.)

Presumably, Leahy and his colleagues — and Attorney General Eric Holder, for that matter — don’t think there’s sufficient evidence yet that the acts involves were criminal. But a focused Senate Judiciary Committee investigation — along the lines of the one conducted by the Senat Armed Services Committee and now being undertaken by the Senate Select Committee on Intelligence — could reveal both “what happened and why” and what more, if anything, should be done about it.

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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.

As I reported earlier, she had some vehement Republican critics. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) made a point of noting, in announcing her confirmation, that every solicitor general who’s served since 1985 endorsed her nomination.

“The confirmation of Elena Kagan to be the nation’s advocate before the Supreme Court is an historic step for women,” said Kathryn Kolbert, president of People for the American Way, in a statement released this evening. “Just over a century ago, women weren’t allowed to practice law or vote—today’s vote is a sign of how far we’ve come.  She will be a passionate and articulate advocate for our laws and Constitution.”

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.

I haven’t seen the proposal so I don’t want to express an opinion on something I haven’t seen. What I have said is my administration is going to operate in a way that leaves no doubt that we do not torture, that we abide by the Geneva conventions, and we abide our traditions of rule of law and due process as we vigorously go after terrorists who are doing us harm.

My view is also that nobody is above the law and if there are clear instances of wrongdoing people should be prosecuted just like ordinary citizens. But generally speaking I’m more interested in looking forward than I am in looking backwards.

Kudos to The Huffington Post’s Sam Stein for asking the question, but unfortunately, the answer isn’t really any different from what Obama has said before. The president does acknowledge that if evidence comes out of “clear instances of wrongdoing,” — such as, for example, torture and other war crimes — then it will be very difficult for him to refuse to prosecute, or to obstruct a congressional commission.

Leahy’s call today for a commission (though it’s not clear if that commission would have any power to prosecute, or even to recommend prosecution, as Bob Fertik pointed out this afternoon) is just the latest in a growing chorus of members of Congress calling for some sort of investigation of lawbreaking by the Bush administration. Rep. John Conyers (D-MI) has proposed an investigatory commission in the House, which has about ten co-sponsors. Sen. Sheldon Whitehouse (D-RI) today came out in favor of Leahy’s proposal, and has made similar statements of his own in the past. And human rights and other advocacy groups have been demanding an investigation for months now; Democrats.com even won enough popular support for the question of whether Obama will appoint a special prosecutor that it topped the change.gov’s list of questions for the president by early January.

All this further ratchets up the pressure on the president to start being more forthcoming with the evidence of what exactly happened over the last eight years. But as the administration’s performance in a federal court of appeals earlier today suggests, the notion that that pressure will produce results anytime soon may be wishful thinking.