The White House has taken charge of the confirmation process for Solicitor General Elena Kagan’s nomination to the Supreme Court, National Public Radio reported Tuesday.

During the Bush and Clinton administrations, the nerve center for the confirmation process was run out of the Justice Department.

Former Assistant Attorney General for Legal Policy Rachel Brand, now of Wilmer Cutler Pickering Hale and Dorr LLP, ran preparations for the confirmation of Justice Samuel Alito and Chief Justice John Roberts. She told NPR that mock confirmation hearings were held in a conference room on the fourth floor.

“It’s a ceremonial conference room, with formal historical portraits of attorneys general on the walls” around a large table, Brand said. “And we would have the nominee sit on one side of the table and have four or five lawyers sit across from him playing senators.”

Professor Martha Kumar of Towson University said that when there are so many deputy positions that have yet to be filled, “you have no choice but to run the operation out of the White House.”

After lingering in the Senate for 10 months, Assistant Attorney General for Legal Policy Christopher H. Schroeder was confirmed just last month.

The House Judiciary Committee endorsed legislation today that would reauthorize two of three expiring Patriot Act provisions that expanded the government’s powers in counter-terrorism investigations.

The panel voted 16 to 10 along party lines to allow the “lone wolf” provision to sunset at the end of the year and reauthorize the records and “roving wiretap” powers. The panel also voted to put more restrictions on so-called national security letters, which are used by the FBI to obtain evidence without a court order.

Here’s what The USA Patriot Amendment Act of 2009 as reported out of committee would do to the expiring Patriot Act provisions:

• Lone wolf: The bill would not extend authority allowing the government to track a target who has no discernible affiliation to a foreign power, such as an international terrorist group. The provision only applies to non-U.S. persons. It has never been used by the government.
• Records: The legislation would continue to allow the government to compel third parties — including financial, travel and telephone companies — to provide access to a suspect’s records. But the bill would place some new restrictions on this authority. Republicans have been especially critical of language in the bill that would make it much more difficult for the government to obtain periodical or book records from libraries or bookstores if the documents would identify patrons. The panel failed to adopt an amendment yesterday from Rep. Elton Gallegly (R-Calif.) that would have eliminated the language on obtaining book records from periodical or book records from libraries or bookstores.
• Roving wiretaps: The bill would continue to allow the government to monitor phone lines or Internet accounts that a terrorism suspect may be using. But the legislation would add more controls. The bill would restrict the roving wiretap to a specific individual, foreign agent or foreign power. Civil liberties groups have expressed concern that this authority doesn’t hold the government accountable if it monitors unintended targets.

Panel Republicans sharply criticized the legislation as harmful to national security. Republicans also expressed frustration that Conyers did not hold a full committee public hearing after the bill was introduced Oct. 20.

A House Judiciary subcommittee held a hearing with National Security Division Deputy Assistant Attorney General Todd Hinnen on the expiring provisions before the legislation was introduced. The full panel held a closed-door hearing with National Security Division chief David Kris on the sunsetting powers last Thursday.

“I am disappointed we did not have a public hearing on this bill,” House Judiciary Committee Ranking Member Lamar Smith (R-Texas) said yesterday when the bill markup began. “The committee should not take up such important legislation without first fully examining the bill and receiving substantive input from the administration’s national security experts.”

The committee’s minority members held a forum on the legislation Tuesday. Bush administration officials Rachel Brand, who headed the Office of Legal Policy; and Will Moschella, who was an Assistant Attorney General for Legislative Affairs, spoke against the bill at the Capitol Hill meeting.

“The bill before us may not be perfect. Few bills are,” House Judiciary Committee Chairman John Conyers (D-Mich.) said said yesterday when the bill markup began. “But it greatly protects the privacy and freedom of Americans and preserves at the same time critical surveillence powers.”

The Justice Department has said it supports the reauthorization of all the expiring Patriot Act provisions, but it has declined to comment on any changes to the powers. The legislation endorsed by the Senate Judiciary Committee extends all the sunsetted provisions, while putting tighter controls on the powers.

House Republicans yesterday held a mock hearing on Capitol Hill to criticize Democrats for proposals to revise the Patriot Act.

Democrats say there are civil liberties concerns with the anti-terrorism law, originally passed in 2001 in the wake of the attacks on New York and Washington. They want to make it harder for the FBI to obtain information about what kind of books people check out of libraries, for example.

Republicans say the changes will weaken national security and have clamored for a full Judiciary Committee hearing about the proposed changes. But Democrats, who control Congress and the White House, haven’t obliged.

So Republicans were reduced to holding what was billed as a “forum” Tuesday, complete with witnesses and C-SPAN cameras. But there were no Democratic lawmakers present and few news media.

“It appears that no hearing will be held on this ill-advised piece of legislation and it will go straight to markup, an unwarranted departure from regular committee process,” House Judiciary Committee Ranking Member Lamar Smith (R-Texas) said at the forum. “The committee should not take up such important legislation without first fully examining the bill and receiving input from the administration’s national security experts on all its provisions.”

Rachel Brand and Will Moschella (photo by Main Justice)

Two former Bush Department of Justice officials appeared as witnesses. Former Office of Legal Policy chief Rachel Brand and ex-Assistant Attorney General for Legislative Affairs Will Moschella criticized the Patriot Act revisions.

At issue is The USA Patriot Amendment Act of 2009, introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) on Oct. 20. The bill would allow the controversial “lone wolf” provision to sunset at the end of the year and reauthorize the records and “roving wiretap” powers.

The committee held a mark-up of the bill Wednesday and will continue its work Thursday.

Here’s a summary of what the Conyers bill would do to the provisions:

- Lone wolf: The bill would not extend the government’s power to track a target who does not have any discernible affiliation to an international terrorist group or other foreign power. The provision has applied only to non-U.S. persons. It has never been used by the government.

-Records: The legislation would continue to allow the government to compel third parties — including financial, travel and telephone companies — to provide access to a suspect’s records. But the bill would place some new restrictions on this authority. Republicans have been especially critical of language in the bill that would make it much more difficult for the government to obtain periodical or book records from libraries or bookstores if the documents would identify patrons.

-Roving wiretaps: The bill would continue to allow the government to monitor phone lines or Internet accounts that a terrorism suspect may be using. But the legislation would add more controls. The bill would restrict the roving wiretap to a specific individual, foreign agent or foreign power. Civil liberties groups have expressed fears that the government can currently use the wiretap authority to unintentionally monitor unintended targets.

Brand and Mochella used words like “troubling” and “unwise” to describe the Conyers bill. Many of the twelve panel Republicans nodded  in agreement with the Bush officials during the forum.

Rep. Jim Sensenbrenner (R-Wis.), who chaired the committee from 2001 to 2007, called the amendments “ultra-left wing” and a ”travesty.” Sensenbrenner introduced the Patriot Act in 2001.

The Justice Department has said it supports reauthorization of all expiring Patriot Act provisions, but it has declined to comment on any proposed changes. The legislation endorsed by the Senate Judiciary Committee extends the sun-setted provisions while putting tighter controls on the powers.

A spokesperson for Conyers did not immediately respond to requests for comment.