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.

Attorney General Eric Holder (WDCpix)

After months of leaks and speculation about its content, the Department of Justice yesterday produced a declassified version of the 2004 CIA inspector general report that provides details of the CIA’s investigations of certain detainees in the Bush administration’s “war on terror.” At almost the same time, Attorney General Eric Holder announced that he would conduct a “preliminary review” into those interrogations to determine “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”

Illustration by: Matt Mahurin

But while the Holder probe is expected to be narrow, focusing only on about a dozen cases already investigated and not prosecuted by the Bush Justice Department, the content of the CIA inspector general report suggests that a far broader investigation is warranted. The report makes clear that virtually every step taken was approved by higher-level officials in the government, including lawyers in the Department of Justice. So the newly appointed Assistant U.S. Attorney John Durham, who’s already investigating the destruction of the videotapes of CIA interrogations, may find it impossible — or at least very difficult — to conduct a thorough and ethical investigation that stays within those narrow bounds.

Take, for example, the fact that the report explicitly acknowledges that the Department of Justice approved the use of certain so-called “enhanced interrogation techniques” in ways that were more extreme and more frequent than its written legal memos allowed.

“With respect to two detainees at those [secret CIA] sites,” says the report, referring to terror suspects Abu Zubaydah and Abd Al-Rahim al-Nashiri, “the use and frequency of one [enhanced interrogation techniques], the waterboard, went beyond the projected use of the technique as originally described to [Department of Justice].” But CIA interrogators did not decide to go beyond those guidelines on their own. In fact, the report continues, the “Agency, on 29 July 2003, secured oral [Department of Justice] concurrence that certain deviations are not significant for purposes of [Department of Justice’s] legal opinions.”

Justice Department officials appear to have approved the repeated waterboarding of these men. Other documents confirm that CIA interrogators used the technique on one suspect up to 183 times, and on Zubaydah up to 83 times. A prosecutor taking his job seriously would have to question Justice Department officials about who approved what and why, what instructions they were given and how those instructions were communicated.

But there’s more.

Although the inspector general’s report is heavily redacted, 33 out of 105 pages in all, it strongly suggests that all of the guidelines governing the detention and interrogation of detainees were approved by Justice Department lawyers. Yet the report also suggests that the way the guidelines were written and approved was so vague as to encourage their violation.

The report says that “[a]lthough the [Department of Central Intelligence] Guidelines are an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Of course, vagueness isn’t a crime. It may be just bad lawyering. But if Justice Department lawyers deliberately wrote or approved the CIA’s guidelines in a way that was vague and left “substantial room for misinterpretation” so as to encourage their violation, then they were not acting in good faith. And if they knew that the guidelines, as written, were likely to lead to illegal conduct, then they could be liable for conspiracy to commit torture.

The lawyers’ intent in interpreting the law and approving legal guidelines is key. And for a prosecutor investigating how certain terror suspects came to be tortured and even killed during their interrogations, looking into how the techniques that led to the abuses were vetted and approved would seem to be an integral part of any “preliminary review” that Holder may be contemplating.

The vagueness of the guidelines isn’t the only evidence of bad faith on the part of the Justice Department’s lawyers. Just take a look at Footnote 26 of the IG report.

The footnote makes clear that the Justice Department lawyers at the Office of Legal Counsel accepted the CIA’s explanation that waterboarding would cause no lasting harm because the technique is used in a more limited way on U.S. soldiers in their Survival, Evasion, Resistance and Escape, or SERE, training, which teaches them to withstand an enemy interrogations.

Footnote 26 points out, however, that medical professionals told the inspector general that “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”

In fact, critics of the CIA program have been making the point for months now that repeated, persistent near-drowning, days at a time of sleep and food deprivation, painful stress positions and the range of other techniques used on terror suspects is different when used in the context of a real interrogation by hostile forces, than it is in military simulations by fellow troops.

Maybe it’s possible that the lawyers didn’t think of that themselves. Similarly, maybe it’s possible that, as they wrote in their legal memos, they believed that these techniques would not “shock the conscience” — the Supreme Court’s standard for determining when government officials have violated the Fifth Amendment’s requirement of due process. (The lawyers concluded in their memos that none of these techniques rose to that level.)

Maybe these lawyers were just taking the information they were given and doing what they were told. Still, it would seem that a serious prosecutor probing whether CIA interrogators broke the law would have to ask how and why the Justice Department’s lawyers advised the interrogators based on a factual scenario that seems patently implausible.

Holder’s announcement that he’ll open this preliminary review has provoked reactions ranging from praise to outrage. The Center for Constitutional Rights said Monday that “Responsibility for the torture program cannot be laid at the feet of a few low-level operatives.” While some CIA agents may have gone beyond the limits set out by the lawyers “who twisted the law to create legal cover for the program,” the group stated, “it is the lawyers and the officials who oversaw and approved the program who must be investigated.” The organization called on Holder to appoint an independent special prosecutor “with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program.”

Others, such as former FBI and Defense Department interrogators, have praised the decision to investigate, but called for a broader probe by an independent commission as well. “A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty,” wrote former FBI official Jack Cloonan, and Defense Department interrogators Steven Kleinman and Matthew Alexander to the chairmen of the House and Senate Judiciary and Intelligence Committees.

And Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) himself issued a statement on Monday saying that the CIA report “underscores why we need to move forward with a Commission of Inquiry, a nonpartisan review of exactly what happened in these areas, so that we can find out what happened and why. Who justified these policies? What was the role of the Bush White House? How can we make sure it never happens again? Information coming out in dribs and drabs will never paint the full picture.”

Whether as part of the criminal probe by Durham or as part of a broader investigation by an independent prosecutor or commission, a more thorough investigation may be unavoidable — at least, if the CIA inspector general report receives the careful reading it deserves.