There’s just one problem. American Muslims simply don’t see Brennan’s perspective informing FBI and other law enforcement interactions with them.

“At the principal level, there’s a recognition of the need to respect our constitutional rights,” said Farhana Khera, the president and executive director of Muslim Advocates, a San Francisco-based civil rights group, “but what we see in the ground, by the agencies, is not the same reality.”

Khera is in town to testify this afternoon to a House Judiciary subcommittee. Along with other civil rights groups, her intention at the hearing is to raise awareness of the rise of racial and religious profiling among law enforcement. Muslim Advocates has collected stories from American Muslim communities about patterns of harassment: surprise visits at home and at work from FBI agents who don’t ask questions tied to evident criminal investigations. “They’re about religious practices, political views, involvement in community organizations,” Khera said. At border crossings and customs checkpoints, Department of Homeland Security agents ask about “what mosque you pray in, how often you pray, opinions on the Iraq war, thing that have nothing to do with international travel.”

That’s consistent with intelligence gathering — giving rise to suspicions that the FBI is treating American Muslim communities as an intelligence target. Khera’s prepared testimony to the House Judiciary subcommittee calls the FBI’s Domestic Intelligence Operations Guide a blueprint for “unprecedented, massive data gathering”:

This type of data collection is based on perceived characteristics and activities of racial and ethnic communities, not individualized suspicion of criminal activity. The DIOGs allow for this racial and ethnic information to be mapped, heightening the concern that this information will be used by law enforcement agencies to unlawfully target innocent Muslim Americans for further investigative activities.

“It’s a real concern,” Khera said. “In the America I grew up in, your religious practices were your own personal business. The government is encroaching on longstanding values of our country.” And — if you believe John Brennan — that’s a counterterrorism liability.

Declassified has learned that the Obama administration has now asked a career Justice Department lawyer, Matthew Olsen, to become NSA’s new general counsel, and that he has accepted the post. An official familiar with the appointment, requesting anonymity when discussing sensitive information, says Olsen won’t actually move into the position until security checks are completed, a process that could take a few weeks.

Olson, Hosenball adds, has experience in surveillance law at the Justice Department’s National Security Division.

According to an “NSA spokesperson” who insisted on anonymity — you would think the job of a spokesperson is to speak openly to the media, but that’s NSA for you — Vito Potenza, the NSA’s last general counsel, retired from the agency in October 2009.

If Potenza’s name makes you say, “Don’t I know that guy from the sordid history of the Bush administration’s warrantless domestic surveillance programs?” then you might be a particularly attentive reader of Bart Gellman’s book Angler, an investigative biography of Dick Cheney’s vice presidency. One particularly vivid section of the book recounted the aftermath of a December 2003 request from Potenza, then the agency’s acting general counsel, and the agency’s inspector general to review the legal documentation undergirding the controversial surveillance activities. David Addington, then Cheney’s lawyer, actually screamed at the guy.

So Potenza has been out for the past nine or so months. I didn’t get an answer about the circumstances surrounding his retirement. But since he’s been gone, “the duties of the general counsel have been covered by seasoned, senior attorneys in NSA’s Office of the General Counsel,” the spokesperson said. And presently, “NSA is conducting a comprehensive search for stellar candidates who embrace its mission to protect America’s national security systems and produce foreign signals-intelligence information.”

As a veteran intelligence observer told me yesterday:

“The absence of a general counsel introduces a shade of uncertainty into the process which needs to be correct,” said Steve Aftergood, an intelligence policy expert at the Federation of American Scientists. “NSA operations are law-intensive activities. They don’t make a move without clearing it with their legal people.”

The spokesperson did not address a question I had about whether and how the absence of a general counsel affects day-to-day surveillance activities by the agency.

Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

Marcy thinks the Justice Department will decline to appeal, thereby letting Judge Vaughn Walker’s determination of illegality stand, but will also keep “details of how and what it did secret” and forestall a challenge on the limits of the government’s authority to determine whether certain disclosures jeopardize national security. (The so-called ‘State Secrets’ doctrine.) Her argument has the virtue of providing the administration with a political setback for its resurgent adversaries from the Bush era — who are fighting to stop the closure of Guantanamo Bay or link it to the abandonment of civilian trials for terrorists — while preserving its own legal authority.

The Times:

The Queens imam arrested in September as investigators pursued the coffee vendor [Najibullah Zazi] was an informer who had helped authorities. Last month, federal prosecutors moved to seize several buildings across the country that house mosques, saying they were owned by a nonprofit group with links to Iran. As a rare federal investigation that has ensnared houses of worship, the case stoked apprehensions that the government sees Arab-Americans and Muslims as a people apart.

Treat entire communities like an undifferentiated threat and they’ll react accordingly. Michael Rolince, a former FBI counterterrorism official who gets it, tells The Times:

“There are some people in the bureau who believe, as I do, that the relationship with the Muslim community is crucial and must be developed with consistency,” Mr. Rolince said. “And there are those who don’t.”

If the FBI really believes that this is a moment of heightened domestic-terrorism dangers, then this destructive behavior comes when the bureau can least afford it.

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.”

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.

Unsurprisingly, then, Ambinder’s sources tell him that Brennan indeed knew:

[S]enior intelligence officials with direct knowledge of Brennan’s role confirm that, indeed, as head of the National Counterterrorism Center (and of its earlier incarnation, called TTIC), he was privy to both the NSA’s “take” — the raw product — and the mechanisms used to collect it. The NCTC cross-checked NSA information with everything else collected by the intelligence community and prepared threat assessments.

Ambinder correctly notes that NCTC didn’t play an operational role in the surveillance programs. But he writes that that an aspect of its job was to “determine the significance of the information gleaned from those sessions.” And that’s what’s fishy. The inspectors general found that the information gleaned from those sessions was rather insignificant, mainly a matter of running down certain leads, but not actual utility in combating terrorism. So why did the programs receive their reauthorizations every 45 days? Was no one inclined at NCTC and TTIC to assess that the programs weren’t particularly useful in repelling a continuing terrorist threat?

Last month, a team of inspectors general from across the government released the results of a year-long study about the constellation of domestic surveillance programs — which possess, at a minimum, dubious legality — launched by the Bush administration. One of the revelations of the study was that the CIA and other elements of the intelligence community were more involved in the surveillance than was ever suspected, with analysts from some agencies providing the basis for determining there was a continuing terrorist threat that necessitated the surveillance. For about two and a half years, two of those agencies — the Terrorist Threat Integration Center and its successor organization, the National Counterterrorism Center — were run by John Brennan. During that time, the report states, the heads of the CIA — George Tenet, John McLaughlin, and Porter Goss — signed those analytic assessments before passing them along, and the report does not specify what role if any Brennan played. Marcy Wheeler, my friend who blogs at Emptywheel, is the only reporter I know of who’s seized on this key discovery.

So today I asked Brennan: in light of the IGs report, what was his role, if any, in the domestic surveillance activities of the Bush administration? Here’s his answer, in full:

I fulfilled all my responsibilities at NCTC [National Counterterrorism Center] that I was asked to fulfill. And there are a number of different programs, some of which have come out in the press, some of which have not. Some of the things that have come out in the press have been inaccurate in terms of the representations there. And when I look back in terms of my service at the NCTC and those places I believe I fulfilled those responsibilities to the best of my abilities.

These issues related to the so-called domestic surveillance programs and other things — one of the things I mentioned, there’s a lot of hyperbole and misrepresentations about what actually happened. And a lot of times people go down certain roads believing reports as facts. And that’s not the case. So I’m not going to go into sort of what my role was in that instance because a lot of those activities are still considered classified and not in the public domain, irrespective of what the press reports might be out there.

Brennan is either conflating unspecified inaccurate press reports with the inspectors general report or he’s challenging the inspectors general report itself.

In a letter — sorry, I don’t have a URL — Feingold wrote to Obama and Attorney General Eric Holder after April’s decision to declassify the Justice Department’s 2002 and 2005 rulings authorizing CIA torture, he urged the new administration to go further:

[O]rder the public release of other memoranda and letters associated with that program, including the July 22,2004 letter of the Attorney General; the August 6,2004 letter of the Acting Assistant Attorney General; the August 2006 OLC [Office of Legal Counsel] memoranda on detention; and the July 2007 OLC memo on interrogation. Moreover, the OLC memoranda should be withdrawn.

Obviously, not all of these are related to surveillance. But Feingold noted that on January 15, outgoing acting associate attorney Steve Bradbury reaffirmed a 2006 unclassified “white paper” on the surveillance programs in a letter clarifying that Bradbury had … withdrawn most of his office’s work authorizing that program. Bradbury:

As set forth in the Justice Department’s white paper of January 19, 2006, addressing the legal basis for the surveillance activities of the National Security Agency publicly described by the President in December 2005, the Department’s more recent analysis is different: Congress, through the Authorization for Use of Military Force of September 18, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“AUMF”), confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent further catastrophic attacks on the United States, and such authority confirmed by the AUMF could reasonably be, and therefore had to be, read consistently with FISA, which explicitly contemplated that Congress could authorize electronic surveillance by a statute other than FISA. See U.S. Department of Justice, Legal Authorities Supporting the Activities of the National SecurityAgency Described by the President (Jan. 19, 2006) (“NSA Legal Authorities White Paper”). As the January 2006 white paper pointed out, “[i]n the specific context of the current armed conflict with al Qaeda and related terrorist organizations. Congress by statute [in the AUMF] had confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland.”

Feingold wants that white paper released and formally withdrawn, along with its ilk. The stakes, as the senator puts it:

It is particularly important that your administration act soon to provide the.clarity that is needed before Congress considers the reauthorization of provisions of the USA Patriot Act, as well as possible changes to the FISA Amendments Act. By formally affirming the executive branch’s commitment to adhere to the statutes governing surveillance, your administration can provide the necessary basis for a productive public discussion on how we can defend the American people and their freedoms while fighting terrorism aggressively.