Attorney General Eric Holder (WDCpix)

On October 30, the Justice Department for the first time applied its new “state secrets” policy to a case charging the government with breaking the law. Open government advocates hoping for a significant change in the government’s stance toward secrecy in national security cases were sorely disappointed. Attorney General Eric Holder said that in the case of Shubert v. Obama — a class action filed in 2007 claiming that the National Security Agency has an ongoing dragnet surveillance program spying on the telephone and e-mail communications of ordinary Americans — the government would do the same thing it’s done repeatedly in the past: it would move to dismiss the case, because even to respond to the charges would endanger national security by revealing sensitive “state secrets.”

The state secrets privilege allows the government to ask a court to dismiss a case filed against it by claiming that merely allowing the case to move forward in court would reveal government secrets and jeopardize national security. It’s frequently used by the Justice Department in cases alleging warrantless wiretapping, “extraordinary rendition” and abuse of detainees by U.S. officials has angered open-government advocates, who claim that the Bush administration, and now President Obama, is using the evidentiary privilege to conceal government wrongdoing.

Image by: Matt Mahurin

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder insisted, adding that “we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.”

Because that information is filed with the court under seal, however, it’s impossible to know whether the government’s reasons are legitimate. That decision will be made by Judge Vaughn Walker, the federal judge in the Northern District of California who’s presiding over this and several other pending cases that the government also claims involve “state secrets.”

But lawyers and advocates for government transparency were dismayed that the Obama administration would even assert the privilege in the Shubert case after promising to severely restrict its use.

“What they’re saying is, ‘because of state secrets, we can’t tell you what the program is,’” said Ilann Maazel, a lawyer representing Virginia Shubert and the three other Brooklyn residents named in the the case who claim the government has been wiretapping them without a warrant. “There’s no limit to the state secrets privilege in their view. There’s no law they cannot violate that implicates national security in their view. Their view is, ‘just trust us.’ ”

Maazel is hardly the only one disappointed with how the Obama administration has used the privilege so far.

“The DOJ continues to embrace the very same “state secrets” theories of the Bush administration—which Democrats generally and Barack Obama specifically once vehemently condemned—and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law,” wrote Salon blogger and constitutional lawyer Glenn Greenwald after the Justice Department moved to dismiss the Shubert case.

Daniel Metcalfe, a former Justice Department official and now Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law, also thinks the new administration’s record on the issue overall has been disappointing.

“On the state secrets privilege as well as other transparency issues, the Obama administration has an easy act to follow, in that the Bush administration was so extremely secretive across the board,” he said. “But from early on, specifically as of February 9 when the Obama administration began following the Bush administration’s state secrets position in the case of Mohamed v. Jeppesen Dataplan,” a lawsuit challenging the government for its role in torture and extraordinary rendition, “open government advocates have been quite alarmed,” said Metcalfe. Although he acknowledged that it takes time for a new administration to develop its own policies, “the Obama administration’s eventual state secrets policy issuance of September 23 has done very little to assuage these growing concerns.”

The Collaboration on Government Secrecy gives President Obama a “D” on its secrecy/transparency scorecard for his use of the state secrets privilege so far. Metcalfe added that the Justice Department still has not completed a promised review of the cases where the government has invoked the state secrets privilege to dismiss them. The new state secrets policy announced in September did not mention that review.

The problem isn’t only that Holder wants to ues the privilege once again to dismiss a case that challenges government conduct. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists has pointed out in his blog, the government may not even be following all aspects of its new policy.

Part of that policy, announced in September after months of delay, attempts to respond to the concern that the state secrets policy can be used to conceal government lawbreaking. The new policy requires more thorough review by senior Justice Department officials, including the Attorney General himself. But it also says that if the Attorney General believes the case “raises credible allegations of government wrongdoing,” he’s supposed to refer those allegations to an Inspector General for further investigation.

Shubert v. Obama claims the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and internet communications without a warrant and without any suspicion that the targets have done anything wrong. It would all sound very sci-fi — and therefore, perhaps, not credible — if there weren’t strong evidence to back it up. That evidence was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds. The matter is still pending in the same federal district court in California where the Shubert case is filed.

After Klein’s testimony became public, another whistleblower came forward, this time a former NSA Intelligence Analyst. In January, Russell Tice told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

But is that enough evidence to require the Attorney General to refer the claims to an Inspector General for investigation, as the new policy requires? It’s impossible to know, because the new policy doesn’t say how the AG should decide which claims are “credible.”

Asked whether the Justice Department referred the matter to an inspector general, spokesperson Tracy Schmaler told TWI that she “can’t comment specifically” on that question, adding: “just to be clear, there is no automatic referral in the policy.”

As for whether guidelines or regulations govern the credibility determination, Schmaler said she couldn’t go beyond the statement made by the Attorney General when he announced his application of the state secrets privilege to the Shubert case.

Ultimately, critics say the problem with even the new state secrets policy is that it leaves too much discretion to the executive to decide what information is so sensitive that it cannot be disclosed even to a judge behind closed doors – and what constitutes a credible allegation against the executive branch that’s worth investigating. The Foreign Intelligence Surveillance Act provides various ways that the government can produce information to a court and have it still remain secret, but allow a legal challenge to government conduct to proceed.

The Obama administration’s use of the state secrets privilege to try to dismiss the Shubert case “demonstrates that we can’t count on the executive to rein itself in when it comes to the state secrets privilege,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation working on the Jewel case.

Although the debate over the privilege sounds technical, what’s at stake isn’t just courtroom procedure. It’s whether the government can get away with engaging in illegal conduct simply by claiming that the evidence is too sensitive to reveal.

“There is not a single person in the United States government who has disavowed the dragnet program, who has said that it’s stopped,” said Maazel, referring to the claims in the Shubert case. Although the government has said that warrantless wiretapping under the Terrorist Surveillance Program has stopped, the Obama administration has not said that warrantless wiretapping isn’t ongoing under some other program. “We have every reason to believe that the copping and splitting in San Francisco is continuing,” said Maazel, referring to the way the government allegedly duplicates messages for monitoring purposes.

Experts note that the state secrets privilege actually encourages illegal conduct in national security matters, since the government knows it can be invoked as a shield. “The basic nature of the state secrets privilege always has been that it can remove a disincentive that the government ordinarily would have against engaging in highly questionable, if not outright wrongful, conduct,” said Metcalfe.

Regardless of how Judge Walker rules in these cases (they’ve all be transferred to his court), the issue isn’t going away. Democrats in Congress have introduced legislation that would keep courts from dismissing cases based solely on the government’s assertion that the case would reveal state secrets. Last week the House Judiciary Committee approved the bill introduced by Rep. Jerrold Nadler (D-NY), after Nadler called the government’s use of the privilege “the greatest threat to liberty at present.”

President Obama, for his part, has avoided taking any position on it. In fact, when a House Judiciary subcommittee in June held a hearing on the proposed legislation, the Justice Department did not even send a witness to testify about its use, saying only that the policy was still under review.

A justice department attorney is expected to appear at a conference next week on the subject being held at Washington College of Law at American University, and will surely be asked about the administration’s views. Metcalfe, who’s convening the conference, hopes the department will also be prepared to report the results of the litigation review that Holder said the department was undertaking in February. That review could lead the government to change its position on asserting the privilege in some pending cases.

Ultimately, if Congress doesn’t pass legislation on the state secrets privilege, the matter could end up in the Supreme Court, which first recognized this controversial executive privilege back in 1953. The court dismissed that case, brought by widows of civilians killed in a military plane crash, because the government claimed it would reveal military secrets. But when the accident report was finally declassified in 2000, rather than military secrets, it revealed gross military negligence that would have been damning evidence against the government in the case. (The case settled in 1953 for $170,000.)

“The Supreme Court hasn’t heard a state secrets case since 1953,” said Maazel. “There’s no question they will have one sooner rather than later.”

What’s particularly interesting about the assertion this time, though, is that it doesn’t appear to be simply covering up Bush-era government misconduct. The case, Shubert v. Bush, suggests an ongoing illegal government data-mining program that intercepts and listens in on a huge range of communications by U.S. citizens. The complaint (PDF), filed by ordinary U.S. citizens living in Brooklyn, N.Y., who communicate with people in different countries, is a fascinating read that charges the government is engaged in a bizarrely vast surveillance dragnet. On the one hand, it sounds completely paranoid; on the other hand, it could be true.

We may never know, however, because if Attorney General Eric Holder has his way, the case will be dismissed before the lawyers even get a chance to investigate. That’s because the government has “to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country,” as Holder said in a statement released late on Friday. Holder has once again invoked the so-called “state secrets privilege,” this time reluctantly, he says, because “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

In fact, federal courts handle classified and sensitive information all the time without disclosing it publicly, by filing records under seal and requiring the lawyers involved in the case to obtain security clearance. It’s unclear why that wouldn’t work in this case. But one implication of Holder’s statement is that the spying and data-mining program is ongoing, so to reveal it would harm national security.

Another equally disturbing implication of Holder’s statement is that even if the government were engaged in blatantly illegal conduct that violates the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Wiretap Act and other federal laws, there would be no way for any U.S. citizen targeted by the government’s illegal conduct to find out, let alone to hold anyone accountable.

As Ilann Maazel, a lawyer representing the plaintiffs who filed the case, told the National Law Journal earlier today, “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Judge Vaughn Walker in the Northern District of California, where the case is pending, has previously greeted the government’s assertion of the state secrets privilege with skepticism, and, in at least one case against an Islamic charity that claimed it was wiretapped, allowed the case to proceed.

We’ll be following closely to see what he does with this one.

And she’s right. As I reported last week, the Senate Judiciary Committee ended up adopting almost all the Republican changes to the bill that removed or watered down civil liberties protections, while voting against most of the reforms proposed by Sens. Russ Feingold (D-Wis.), Richard Durbin (D-Ill.) and Arlen Specter (D-Pa.), which would have limited the FBI’s powers under the Patriot Act to going after what the law was designed to attack: international terrorism.

The result, as Feingold put it, was that the Senate Judiciary Committee had become the “prosecutor’s committee” — accepting virtually every recommendation from the FBI and Justice Department prosecutors to expand their powers.

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.

On Friday, I heard from Jonathan Freiman, a constitutional lawyer who represents Jose Padilla in a lawsuit against the government.

By promising to improve its policy for invoking the state secrets privilege, the Obama Justice Department last week announced, with much fanfare, that it will require the attorney general to sign off every time the Justice Department claims “state secrets” trump a victim’s charges. Well, as Freiman points out, that’s what the law has always required, at least in theory. And that hasn’t stopped the government from using the state secrets privilege in the past simply to cover up government wrongdoing.

“Ever since the Supreme Court first recognized it in U.S. v. Reynolds, the doctrine has required that any invocation of the privilege be supported with an affidavit from the head of the relevant government department,” wrote Freiman in an email. “If we expect the A.G. to be more likely than other high government officials to respect law – and less likely to invoke the state secrets privilege just to cover up government wrongdoing – then the new policy is a good thing.”

“But for most of the last decade there wasn’t much reason to put the A.G. on a pedestal above his cabinet peers,” Freiman wrote. Maybe things will change, he said, but “with the administration’s continuing opposition to real checks and balances, it’s possible that we’ll never really know whether they’ve changed.”

That is, of course, the problem with allowing the government to claim “state secrets” to dismiss a case without even letting the judge review the evidence to decide if it’s really a national security concern or not. After all, in the Reynolds case, when the government first claimed the privilege, insisting that release of information about a military plane crash would endanger national security, it turned out the Justice Department was just hiding the military’s own negligence — and denying the widows of the plane crash victims not only compensation, but any opportunity to find out what really happened.

Correction: I mistakenly identified Jonathan Freiman as representing Al Haramain Islamic Foundation in a previous version of this post. He represents Jose Padilla. Jonathan Eisenberg represents Al Haramain. This post has been updated to reflect the correction.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

–

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Carrie Johnson at The Washington Post reports that the administration will “announce a new policy Wednesday making it much more difficult for the government to claim that it is protecting state secrets when it hides details of sensitive national security strategies such as rendition and warrantless eavesdropping, according to two senior Justice Department officials.”

The new policy apparently requires intelligence agencies and the military to convince the attorney general and a team of Justice Department lawyers that the release of sensitive information would present significant harm to “national defense or foreign relations.” In the past, all it took was one official to approve the claim that state secrets were at risk.

While the Obama administration’s announcement is welcome, it’s also long overdue. Back in June, Attorney General Eric Holder said he was going to announce a new policy on the so-called state secrets privilege “in a matter of days.”  Many days have passed, and now three months later, we have a new policy.

Any administration infighting over the changes may have finally been settled by the fact that legislation pending in the Senate, the State Secrets Protection Act of 2009, would have made very similar changes — only the credit would have gone to Congress rather than the president.

This morning, at a Senate Judiciary Committee hearing on the USA Patriot Act, committee chair Senator Patrick Leahy (D-Vt.), a co-sponsor of the State Secrets Protection Act, said of the administration’s new policy on state secrets that “today’s announcement marks progress.” He pledged to closely monitor its application.

Update: Here is the Justice Department’s announcement.

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

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

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

Illustration by: Matt Mahurin

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

“Then-Chairman Dreier under Lord knows whose instructions, substituted that bill for another bill, that we at judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring” and that, according to committee Chairman John Conyers (D-Mich.), created problems that the bill he’d approved would have prevented.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act,” Rep. Jerrold Nadler (D-NY) echoed later in the hearing. “Then the bill just disappeared. And we had a new several hundred page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The state secrets privilege, of course, is what the government invokes when it wants a judge to dismiss a lawsuit that it claims will reveal “state secrets” just by going forward, even if the judge is the only person who gets to see the sensitive secret evidence. The government invoked “state secrets” in the case of Mohamed v. Jeppesen Dataplan, and several other cases involving torture and warrantless wiretapping that the Justice Department wants dismissed. Pending legislation would limit the executive’s ability to use this confidential evidentiary privilege to dismiss outright legal challenges to government conduct. The administration so far has avoided taking a position on the legislation.

As I reported almost two months ago, Holder told the Senate Judiciary Committee on June 17 that he would issue a new policy on when the government will invoke the state secrets privilege to conceal evidence from the public — and even from federal court judges — “in a matter of days.”

Well, it’s August, and still nothing. After Ed asked me the question, I followed up with Dean Boyd, spokesman for the Justice Department’s national security division, asking him if that policy had ever been issued. After all, maybe we’d just missed it.

Boyd’s response:  “Not yet; still in the works.”