Good news on national security legislation. I know! I can hardly believe it myself!

The USA Patriot Amendments Act was marked up this week in an epic House Judiciary Committee meeting that spanned two days. The bill, though a bit watered down, still managed to maintain some of its civil liberties protections including:

• A rewrite of the gag order that comes with national security letters (NSLs). That provision is consistent with a recent decision in a case challenging the gag order by yours truly, the ACLU.
• A higher and stricter standard on issuing NSLs
• Letting the never-used “lone wolf” provision expire
• Much needed fixes to the John Doe roving wiretap provision

There are now a total of seven bills in Congress addressing the Patriot Act since three of the Act’s provisions are set to expire on December 31st. The USA Patriot Amendments Act is the best of the bunch that Congress is actively considering.

We’ll be asking you for support on this bill, especially as it faces some stiff competition from a competing bill introduced by House Intelligence Committee Chairman Silvestre Reyes. That bill will likely be heading for its own markup in the next few weeks (though, that mark up will likely be closed to the public). For more great info on Patriot check out the Get FISA Right kids, Julian Sanchez at Cato and, of course, Marcy Wheeler over at Firedoglake.

The House Judiciary Committee also managed to mark up the State Secrets Protection Act this week and, thankfully, left the bill largely intact. This bill was introduced early in the year after the Obama administration followed the Bush administration’s lead on claiming state secrets in our lawsuit against Jeppesen DataPlan for their role in “extraordinary rendition.” The government — unfortunately both past and present administrations now — has attempted to block several important lawsuits with an overbroad and improper assertion of “state secrets.”

The ACLU considers the State Secrets Protection Act a must-pass bill that will narrow the scope of the state secrets privilege and could open the courthouse doors to people who have suffered real and legitimate harm by the government. The bill will likely see more movement in 2010. Expect to hear from us then.

This week has been a busy one for those following the military commissions debate. Congress has held not one, but two hearings on recent proposed changes to the military commissions.

Before we get into that, a brief history lesson: The military commissions were created in 2006 by the passage of the Military Commissions Act. I could write paragraph after paragraph about why this bill was unconstitutional, should never have been written in the first place and was partially ruled illegal by the Supreme Court but, for the sake of time and space, I'll just point you here.

Fast-forward to January 2009. President Obama declares on his first day of office that the military commissions are being stopped in their tracks and suspended for 90 days. In May, the president made a highly publicized speech at the National Archives (standing directly in front of the Constitution, mind you) saying that, you know, the military commissions maybe aren't so bad. He wants changes made. Trouble is, those changes would still allow for hearsay and coerced evidence to be admitted and used against the defendant. Coerced evidence is one step above evidence obtained through torture and neither it, nor hearsay, has a place in any courtroom Americans would consider fair, right?

So, anyway. On Tuesday, the Senate Armed Services Committee held a hearing to discuss both the president's proposed changes to the commissions, as well as the language in the Defense Authorization bill. Two panels were scheduled and it looked to be pretty interesting — especially as all the witnesses on the first panel were government witnesses. It got a lot more interesting once they opened their mouths. Assistant Attorney General for National Security David Kris, Pentagon General Counsel Jeh Johnson and Navy Vice Admiral Bruce E. MacDonald testified and, though it was all fascinating, two things stuck out.

1. Kris said that the Obama administration believed that the due process clause of the Constitution applies to the military commissions. This is big. Due process means the right to a public and speedy trial among other rights. The train left the station a while ago on "speedy," but "public" should certainly at least mean no secret evidence should be admitted. Due process should also mean no evidence obtained through coercion, which shoots down a provision included in the Defense Authorization allowing it. Hopefully this will be addressed before it goes to the floor.
2. Johnson testified that the administration believed that individuals who were tried and acquitted of all crimes could still be held if the government deemed them too dangerous. Whaaaaaaaaaaaaaat?! Is that really a door the administration wants to open?

On Wednesday, the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties also held a hearing on the military commissions. Our very own Denny LeBouef testified, as did Lt. Col. Darrel Vandeveld and a few others.

This hearing, as they usually are in the House, was a little more cantankerous. First of all, the Republicans consistently outnumbered the Democrats in attendance during this hearing — and so, so many others that the Judiciary committee calls. Those members that showed up though put on a great show. The highlights included Congressman Sensenbrenner (R-Wis.) jumping on LeBouef for taking issue with statements from a sorely underqualified witness who has never been to Guantánamo and, by the way, is not a lawyer.

The other was pretty much any time Lt. Col. Vandeveld opened his mouth. Lt. Col. Vandeveld was a prosecutor in the military commissions and was set to be arguing our country's case against child soldier Mohammed Jawad. When faced with evidence he felt did not pass muster, and after seeing how Jawad was treated at Guantánamo, Lt. Col. Vandeveld asked to be reassigned last year. His story is not only compelling, it goes to the very core of whether the military commissions can ever be truly fair or seen as a legitimate system of justice. Both the colonel and the ACLU agree that system is structurally flawed and broken beyond repair. In the end, it was one of the better hearings I've been to in my time at the ACLU.

Coming up, the Senate is due to take up the Defense Authorization and could vote on that bill and the military commissions language written into it as early as next week. Look out for ugly Guantánamo amendments — this is just the kind of vehicle people attach things to. Also next week, the House Armed Services Committee is holding its own hearing on Thursday.

So what do vacuum cleaners and the military commissions have in common? They both suck. Needless to say, we'll be keeping an eye on both sides of the Capitol next week.

Here in D.C. we've had back-to-back hearings touching on the use of torture. Yesterday, the Senate Judiciary subcommittee held a hearing on torture that featured testimony from former FBI agent Ali Soufan, former State Department advisor and executive director of the 9/11 Commission Philip Zelikow, and several legal experts. The spotlights were firmly on Zelikow and Soufan, who testified to the committee from behind a curtained wall in place to protect his anonymity, as they have each been in the press recently for their opposition to torture. Here's a little background.

Soufan's testimony made several interesting points that, if are true, could help to show the torture debate in a new light. He claimed that after the capture of high-level Al Qaeda operative, Abu Zubaydah, he was able to glean more information with traditional interrogation techniques than the harsher techniques imposed on the prisoner after Soufan's departure.

Also, according to Soufan, the CIA agents who witnessed "harsh interrogation techniques" made their opposition known. It was the introduction of a contractor hired by the CIA, James Mitchell (an expert in the military's Survival, Evasion, Resistance and Escape, or SERE, program), that brought the brutal techniques. This means that CIA headquarters was ignoring or dismissing the reports from their agents in the field and started to implement their own ideas (or worse, an independent contractor's) of what would work. Not good.

Next up was Attorney General Eric Holder who faced off with the House Judiciary Committee today in a general Department of Justice (DOJ) oversight hearing. Holder said some encouraging things on many of ACLU's issues but still wouldn't commit to naming an independent prosecutor to investigate the use of torture. Some interesting nuggets:

• The much talked about DOJ Office of Professional Responsibility report on the torture memo authors will be out in what Holder called "a matter of weeks." He still hasn't seen the report, so I'd guess the DOJ will want Congress to be in session when this is released. I'd look for the report to be out after the Memorial Day recess.
• Though he wouldn't comment on whether or not he thought a congressional commission to investigate the Bush administration's abuses would be a good idea, Holder did vow that any committee created would have the full cooperation of the DOJ.
• As for the disappointing reversal in President Obama's decision to release the torture photographs the ACLU requested through a Freedom of Information Act lawsuit, Holder stood by the president's choice.
• That investigation into the CIA's destruction of torture tapes? Still happening. Slowly but surely…

If nothing else, these hearings have proven that Congress isn't done with the subject of torture — nor should it be. Unfortunately, as with most hearings on the abuses of the Bush administration, we're left with more questions than answers. Did CIA agents really object to torture techniques like Soufan testified? How many more facts does the attorney general need to "gather" before appointing an independent prosecutor? Will the American public finally face the disturbing truth of our government's actions in Iraq and Afghanistan? With any luck, the coming months will bring answers to all these questions and more. Maybe if we got that select committee…

Here in Washington it’s hard to escape the stimulus package debate. Especially if the TV in your office is set to C-SPAN. It’s an important debate and it turns out there are a few amendments that might be affecting those civil liberties we here at the ACLU Washington Legislative Office strive so hard to protect for you.

Last week, in the House version of the stimulus package, there was an amendment passed that secured privacy protections as a part of funding for health IT implementation. Nice, right?

Tonight’s round of votes in the Senate, however, will include an amendment to remove a provision of the bill that preserves constitutional safeguards by prohibiting federal funds for construction or repair of buildings used for worship and other religious purposes. In order to protect religious freedom, the Senate should vote down Sen. Jim DeMint’s (R-S.C.) amendment in order to protect the religious freedom of all those whose religious buildings aren’t eligible for federal funds. Here’s a Supreme Court decision that echoes our argument.

We’ve written a letter to the Senate urging a vote against the amendment. Cross your fingers for religious freedom, readers.

In other religious news, the Obama administration released a troubling Executive Order on the White House’s Office of Faith-Based and Neighborhood Partnerships. From our release:

President Barack Obama announced today that he is taking the unprecedented and troubling step of forming a federal advisory committee to be made up mostly of religious leaders. Also of great concern, President Obama will increase federal funds going to religious organizations without first changing the Bush-era rules allowing federally-funded religious organizations to apply religious hiring tests to employees.

Big day in religion, kids. Check this space for updates on the DeMint amendment vote.

UPDATE: DeMint amendment failed!