Friday, June 30, 2006

Senate Review - June 30, 2006

The Senate is adjourned for the Independence Day recess, so there really isn't much point in having a "Senate Live" post today. But quite a bit transpired yesterday, and the usual topics will continue to be in the news, so I'll post a few links, references, and perhaps even make a few comments.

The following concurrent resolutions and Senate resolutions were read, and referred (or acted upon), as indicated:

By Mr. CORNYN (for himself and Mr. ROBERTS):
S. Res. 524. A resolution condemning the unauthorized disclosure and publication of classified information about the Terrorist Finance Tracking Program, the National Security Agency's Terrorist Surveillance Program, and other vital counter-terrorism programs; to the Committee on the Judiciary.

---===---

Resolved, That--

(1) the Senate joins the President in condemning the damaging leaks and subsequent publication of vital national security information about the Terrorist Finance Tracking Program and the National Security Agency's Terrorist Surveillance Program; and

(2) it is the sense of the Senate that the Department of Justice should vigorously and tirelessly investigate and prosecute any and all persons responsible for the unauthorized disclosure to news organizations of the Terrorist Finance Tracking Program, the National Security Agency's Terrorist Surveillance Program, and other vital counter-terrorism programs.

I won't be holding my breath for prosecutions. Plenty of barking going on though. In fact, I recall Senators Lugar and Specter proposing a reporter shield law, and I fully expect that proposal to get more and quicker action than prosecution against malignant reporters.


UNANIMOUS CONSENT AGREEMENT--H.R. 810, S. 2754, S. 3504

Mr. FRIST. Mr. President, I ask unanimous consent that at a time determined by the majority leader, after consultation with the Democratic leader, the Senate proceed en bloc to the following bills under the following agreement:

H.R. 810, Stem Cell Research Enhancement Act, discharged from the HELP Committee; S. 2754, Alternative Pluripotent Stem Cell Therapies Enhancement Act, discharged from the HELP Committee; S. 3504, Fetus Farming Prohibition Act of 2006.

I further ask consent there be a total of 12 hours of debate equally divided between the two leaders or their designees; provided further that no amendments be in order to any of the measures; further, that following the use or yielding back of time the bills be read a third time and the Senate proceed to three consecutive votes in the following order with no intervening action or debate: S. 3504, S. 2754, H.R. 810.

Finally, I ask unanimous consent that any bill that does not receive 60 votes in the affirmative, the vote on passage be vitiated and the bill be returned to its previous status on the calendar or in the HELP Committee; and further, other than as provided in this agreement, it not be in order for the Senate to consider any bill or amendment relating to stem cell research during the remainder of the 109th Congress.

That is interesting on several levels, not the least of which is the 60 vote threshold for passing a bill. Another is the apparent joining of the bills, but that is an illusion as they are independent - except that as a matter of getting the agreement, each proponent had to agree to a 60 vote threshold for passing his measure. The agreement that there be no amendment in order on stem cells, for the remainder of the 109th, might play out if the Senate considers some health care related measure. I remember the joke that was "Health Week," but don't think there will any effort to resurrect any of those measures during the 109th Congress.


Peter D. Keisler was nominated to be a Circuit Court judge in the District of Columbia Circuit. This is an excellent pick. And as "Mookie-Jones" at confirmthem.com says, "This is the fellow that the administration wanted for the Murnaghan vacancy on the 4th Circuit. Sarbanes and Mikulski said no. So now he is nominated for the DC Circuit, where blue slips do not apply."


Mr. McCONNELL. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment under the provisions of H. Con. Res. 440 until 2 p.m. on Monday, July 10. I further ask unanimous consent that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate then proceed to a period for the transaction of morning business until 3 p.m., with the time equally divided between the leaders or their designees. I further ask that at 3 p.m., the Senate proceed to the immediate consideration of Calendar No. 503, H.R. 5441, the Homeland Security appropriations bill.

Hamdan Material

A great collection of links to media reports relating to the Hamdan decision is at howappealing.law.com -- one of the best places to get timely news of interesting legal and political events.

http://howappealing.law.com/063006.html#015826 <- Mash here

Mark Levin weighs in here, Andy McCarthy offered a pre-mortem, and Jonathan Adler provides a number of links to substantive debates.

SCOTUSblog: Justice Department, Pentagon react to Hamdan

Above includes a link to DoJ teleconference with the media that probes the administration's possible moves, faced with the SCOTUS ruling in the Hamdan case.

Also from SCOTUSblog, this piece discusses the impact on hundreds of cases pending in District Courts and a handful of appeals pending in the D.C. Circuit Court.

Also, News roundup from SCOTUSblog, complementing the list from howappealing.law.com.

Kathryn Jean Lopez summarizes Senator Specter's proposed legislative response, S.3614- the Unprivileged Combatant Act of 2006, which was introduced on Thursday, June 29 - the same day the SCOTUS decision came down.

Senator Specter speaks on the bill starting on page S6796, and indicates one possible path to further "resolution" of the issue of handling detainees at Gitmo. In his speech, Senator Specter takes jabs at Justice Scalia and Senator Graham - which I find ironic and funny, in part because Senator Specter draws an odd inference and conclusion from Scalia's citation to Specter's floor speech of November 2005 relating to the Detainee Treatment Act. But the point of the below snip from Senator Specter's speech of June 29 is not the jab at Justice Scalia, it is Specter's summary of the effect of the proposed legislation.

There will be plenty of discussion that treats this as a "new" issue. That's because the public is too lazy to seek and review recent history.

STATEMENTS ON INTRODUCED BILLS ...

S. 3614. A bill to provide comprehensive procedures for the adjudication of cases involving unprivileged combatants; to the Committee on Armed Services. ...

Mr. SPECTER. ... Senator Durbin and I introduced a bill to handle the Guantanamo detainees on February 13, 2002. The issue was not picked up again until the Judiciary Committee held hearings last June, and this bill, which I am introducing today, I believe, will satisfy the requirements of the Supreme Court of the United States.

This bill provides for two divisions. One is for the people who are charged with specific offenses. We retain the description of a military commission. We provide that there would be three officers on the commission, one president--a presiding judge from the Judge Advocate General's Office. Also an attorney will be provided for the accused, there will be competent evidence, there will be cross-examination and a unanimous verdict.

In the event of the use of classified information, we prescribe that the provisions of the Confidential Information Protection Act would govern, which is a statute which has been used in our courts for many years, which authorizes the presiding judge to sift through the information and make available to the defense whatever is appropriate and not classified. And if it is classified, then to make it available at the discretion of the judge to the attorney.

The attorney for the accused would be cleared through regular channels to deal with classified information so that we would be protecting the classified information by having it viewed only by someone authorized to take a look at it, so that the defense lawyer would be able to use it in the defense of his client. That is not a perfect situation, but that is the way we have dealt with confidential information under the so-called Confidential Information Protection Act.

In our legislation, we also deal with the enemy combatants. These are the individuals who have been detained at Guantanamo under an arrangement where there is no limit as to the length of their detention. That has caused considerable angst, considerable objection. But it is a very difficult matter. When we are in a war, fighting terrorists--and we should never lose our focus that we are in that war and that there are continuing dangers and we have to protect Americans--until somebody has a better idea, they are going to be detained. Some have been released and some of those released have been found on the battlefields killing Americans, so the detention of enemy combatants is an ongoing issue.

Our legislation provides that there would be a classification tribunal so that there would be a review of their status, to make a determination on a periodic basis that they continue to be a threat to the United States, either on the continent or because they will go back and fight a war. We provide for an attorney, again, an attorney who would be cleared to view classified information.

The issue of evidence is much more difficult because these enemy combatants are frequently taken into custody in a battlefield situation where competent evidence is not present, so we allow for hearsay.

In the Supreme Court opinion, if there is a showing of necessity, there is leeway granted in terms of defining sufficient due process. The Supreme Court found, for example, that the President had demonstrated sufficiently that there could not be trials in the U.S. Federal district courts, so ruling that out was fine. It was acceptable. And leeway, too, for some deviation from all of the generalized rules might be acceptable. The Supreme Court really didn't reach the issue of granting leeway because they didn't have a specific situation, but there would have to be a showing of necessity, a showing that no other system would work.

Wes Pruden on Immigration

The closing paragraph is perhaps inflammatory, but it does illustrate the need to "watch what they do, not what they say."

The missing troops on the border
By Wesley Pruden - THE WASHINGTON TIMES
Published June 30, 2006

... The president's order assigning the National Guard to enforce border security, such as it is, has been suspect from the beginning. The order sounded forceful and dramatic, but was received with considerable skepticism because on second thought it sounded as mostly sound and little fury, signifying not very much. The president's heart is with amnesty, by whatever they're calling it at the White House, and sending weary and exhausted National Guardsmen to "assist" the Border Patrol will neither secure the border nor staunch the gusher of desperate illegals, mostly Mexicans, pouring into the country in search of work. Immigration reform is as elusive as ever. Counting on the National Guard to render the politics harmless is merely blowing more smoke.

Talk Show Transcript Links - Jul 02, 2006

CBS: Face The Nation
New York Times Executive Editor Bill Keller
Specter, Levin
http://www.cbsnews.com/htdocs/pdf/face_070206.pdf

CNN: Late Edition
Reps. Peter King and Barney Frank
Israeli Vice Premier Shimon Peres
Chief Palestinian negotiator Saeb Erakat
NASA Administrator Michael Griffin
Singer Tony Orlando
http://transcripts.cnn.com/TRANSCRIPTS/0607/02/le.01.html

Fox News Sunday - Reed and Graham
http://www.foxnews.com/story/0,2933,201851,00.html
Fox News Sunday - NASA Administrator Michael Griffin
http://www.foxnews.com/story/0,2933,201849,00.html

Fox News Sunday Podcast (MP3 - 20 Mb)
http://media2.foxnews.com/podcasts/070206_fns_podcast_128.mp3
http://www.foxnews.com/xmlfeed/podcasting/0,4369,118,00.xml

NBC: Meet the Press (MP3 podcast - 12 Mb)
McConnell, Schumer
Bill Bennett, John Harwood, Dana Priest, William Safire
http://podcast.msnbc.com/audio/podcast/pd_mtp-07-02-2006-074239.mp3

NBC - Meet the Press July 02, 2006 Transcript
http://www.msnbc.msn.com/id/13615446/

Talk Show Transcript Archives

Fox News Sunday Show
http://www.foxnews.com/column_archive/0,2976,108,00.html

Meet the Press
http://www.msnbc.msn.com/id/8987534/

Real Clear Politics Transcript Archive
http://realclearpolitics.com/resource_center


More on the Hamdan Decision

Hat tip to howappealing.com for noting the below article.

What the ruling says--and what it doesn't say
By David B. Rivkin Jr. and Lee A. Casey

... Indeed, none of the justices questioned the government's right to detain Salim Ahmed Hamdan (once Osama bin Laden's driver), or other Guantanamo prisoners, while hostilities continue. Nor did any of them suggest that Mr. Hamdan, or any other Guantanamo detainee, must be treated as civilians and accorded a speedy trial in the civilian courts. ...

And in a bit lighter vein, this from Top Ten Things You Can Say About Hamdan Case

9. How about the Chief Justice? Now he has to spend all summer thinking about how five of his colleagues on the bench think he got the most important case of his life, so far anyway, completely wrong. Yes, it was John G. Roberts, Jr.'s appeals court ruling, announced last July when he still was on the D.C. Circuit Court of Appeals, that the Court's majority eviscerated Thursday.

The above found by navigating this post at howappealing.com, which is loaded with informative and thought-provoking links.

UPDATE - July 4 @ 8:50

More Snips from June 29 Congressional Record

Most of the below speaks for itself. Reid in favor of more guns in airplanes? Senator Cornyn thinks taxes in Mexico need to be doubled? Senator Landrieu chimes in with another option for estate/death tax reform. And Senator Frist rewards parliamentarian Frumin by causing the authoritative set of Senate Rules (now "Riddick's") to be reissued as "Frumin's".

STATEMENTS ON INTRODUCED BILLS

By Mr. REID:

S. 3621. A bill to permit certain local law enforcement officers to carry firearms on aircraft; to the Committee on Commerce, Science, and Transportation.

Mr. REID. Mr. President, I rise today to reintroduce legislation I originally introduced last Congress, a bill to make air travel safer by allowing local law enforcement to carry their firearms on aircrafts, the Safer Skies Act of 2006. ...

---===---

By Mr. CORNYN (for himself and Mr. COLEMAN):

S. 3622. A bill to authorize the President to negotiate the creation of a North American Investment Fund between the Governments of Canada, of Mexico, and of the United States to increase the economic competitiveness of North America in a global economy; to the Committee on Foreign Relations. ...

I have come to view the creation of a North American Investment Fund as both central to our relationship with Mexico and necessary to ensure the economic prosperity of North America as part of an ever-changing and growing global economy. I hope that this legislation will be a useful vehicle to help jump-start discussions on this very important topic.

My bill authorizes the President to negotiate the creation of a North American Investment Fund with the governments of Canada and Mexico. The fund can only be created if Mexico satisfies two conditions.

First, the Government of Mexico must raise tax revenue to 18 percent of the gross domestic product of Mexico. Their current tax rate is approximately 9 percent.

Second, Mexico must develop and execute a program of economic reforms to increase private investment and economic growth, while also maintaining economic stability in Mexico.

These steps are of the utmost importance because any lasting changes in Mexico must start from within.

The purpose of this fund is to reinforce efforts already underway in Mexico to ensure their own economic development. The funding would make grants available for projects to construct roads in Mexico to facilitate trade, to develop and expand their education programs, to build infrastructure for the deployment of communications services and to improve job training and workforce development for high-growth industries.

---===---

By Ms. LANDRIEU:

S. 3626. A bill to amend the Internal Revenue Code of 1986 to provide estate tax relief and reform, and for other purposes; to the Committee on Finance. ...

... If you are an estate of less than $10 million, you will pay no tax. If you are a single person with $5 million or an estate worth $10 million, you have to pay income tax, you will pay capital gains tax, you will pay payroll tax, you will pay a lot of other taxes that come with the rights and privileges of being an American citizen, but you will not pay an estate tax. Only those estates over $10 million will pay the tax. And those over $100 million--which I would call superstates--would pay a little more than those that are in the middle.

---===---

By Mr. FRIST (for himself, Mr. Reid, Mr. Stevens, and Mr. Byrd):

S.J. Res. 40. A joint resolution authorizing the printing and binding of a supplement to, and revised edition of, Senate Procedure; considered and passed. ...

SECTION 1. PRINTING OF SUPPLEMENT TO, AND REVISED EDITION OF, SENATE PROCEDURE.

(a) In General.--Each of the following documents shall be prepared under the supervision of Alan Frumin, Parliamentarian and Parliamentarian Emeritus of the Senate, and shall be printed and bound as a Senate document:

(1) A supplement to ``Riddick's Senate Procedure'', to be styled ``Frumin's Supplement to Riddick's Senate Procedure''.

(2) A revised edition of ``Riddick's Senate Procedure'', to be styled ``Frumin's Senate Procedure''.

(b) Copies.--One thousand five hundred copies of each document described in subsection (a) shall be printed for distribution to Senators and for the use of the Senate.

The name "Frumin" likely doesn't ring a bell, because the parliamentarian is a relatively obscure position. But it wasn't obscure last May, when the Senate was wrangling with the application and abuse of cloture in the context of judicial nominations.

A Likely Script for The 'Nuclear Option'
By Mike Allen and Jeffrey H. Birnbaum
Washington Post Staff Writers
Wednesday, May 18, 2005; Page A01

... The rule change Frist is seeking to bar the use of the filibuster for judicial nominations has been dubbed the "nuclear option" because of its potential to disrupt the Senate and shatter what little comity remains between Republicans and Democrats. ...

Also, some Democrats have advanced evidence that the GOP gambit lacks support from the Senate parliamentarian, the official who typically rules on what is allowable under the chamber's rules and precedents.

Reid told reporters last month that the parliamentarian, Alan S. Frumin, had told him that he opposed the Republicans' plan and that "if they do this, they will have to overrule him."

Frumin, who was appointed by Republican leaders in 2001, has not been granting interviews. But a senior Republican Senate aide confirmed that Frist does not plan to consult Frumin at the time the nuclear option is deployed. "He has nothing to do with this," the aide said. "He's a staffer, and we don't have to ask his opinion."

---===---

Parliamentarian would oppose 'nuclear option'
By Geoff Earle
April 14, 2005

... When he was majority leader, Lott appointed the parliamentarian, Alan Frumin, after firing his predecessor, Bob Dove.

Reid received the assurance from the parliamentarian during a private conversation within the past few weeks, according to aides. Reid told reporters this week that the parliamentarian assured him that, if Republicans go through with the move, "they will have to overrule him, because what they are doing is wrong."


The brave founders of the United States held certain principles to be self-evident, needing no explanation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

And on this fourth of July, I remind the reader that the definition of "unalienable" has no particularly lofty connotation. "Unalienable" simply means the "object" can't be transfered to another person. You can't cause your life-force to animate a dead or dying friend or relative - your life is yours, and yours alone. Sure, you can "give" it in the sense that you lose it, but it doesn't "go" to somebody else and can't bring the dead back to life.

Likewise liberty, the freedom to go where one chooses and do what one wants. Just try to swap your liberty for the lost liberty of a prison convict. And the "pursuit of happiness" is quite personal, none of us can transfer our pursuit to anybody else.

Some things are just so wrapped up in one's personal self that they may properly be labeled "unalienable." Even if one's personal life, personal liberty, and personal pursuit of happiness is taken, they cannot be given to another person. Indeed, governments routinely deprive people of life, liberty and pursuit of happiness.

But the wonderful Declaration of Independence stands for the radical proposition that the people are the ultimate master of their government, and that just powers of government depend on the voluntary consent of the governed.

Happy Independence Day!

UPDATE - July 5 @ 9:05

The Senate Judiciary Committee is working over the July 4th recess, and has scheduled several meetings for later this month.

FIELD HEARING--Comprehensive Immigration Reform

The Senate Committee on the Judiciary will conduct a field hearing on Wednesday, July 5, 2006 at 10:00 a.m. on "Comprehensive Immigration Reform: Examining the Need for a Guest Worker Program" at the National Constitution Center, 525 Arch Street, Independence Mall, Philadelphia, PA.

---===---

Hamdan v. Rumsfeld: Establishing a Constitutional Process

The Senate Committee on the Judiciary has scheduled a hearing on "Hamdan v. Rumsfeld: Establishing a Constitutional Process" for Tuesday, July 11, 2006 at 9:30 a.m. in Room 216 of the Senate Hart Office Building.


I thought this was an interesting paragraph, near the end of a rather predictable (but informative) article.

Washington Prowler - SWIFT Deposits
Published 7/5/2006 12:09:19 AM

To that end, the Justice Department has quietly and unofficially begun looking into possible sources for the leak. "We don't think it's someone currently employed by the government or involved in law enforcement or the intelligence community," says another Justice source. "That stuff about 'current and former' sources just doesn't wash. No one currently working on terrorism investigations that use SWIFT data would want to leak this or see it leaked by others. We think we're looking at fairly high-ranking, former officials who want to make life difficult for us and what we do for whatever reasons."

And another one from The American Spectator ...

In the Name of God, Go
By Jed Babbin
Published 7/5/2006 12:08:15 AM

For all the political hype surrounding the Supreme Court's decision last week in Hamdan v. Rumsfeld, there's nothing in it that places time constraints on what comes next. In that opinion, and the preceding decision in Hamdi, the court confirmed that we can keep terrorist detainees behind the wire until the conflict is over. And -- given the rate at which we're prosecuting this war -- that may be in 2525. The military tribunals are aimed to try and punish a very small number (less than a dozen of 450-odd detainees at Gitmo). So why rush into legislation a law reconstituting the military tribunals when so few are affected? Let's take our time and do it right. Over the next three or four years.

But, you say, what about confirming all the judges the President has nominated? Well, sad to say, there are only three ready for a Senate floor vote: Boyle, Myers and Smith. Seven more -- including Defense Department general counsel Jim Haynes -- are being considered by Specter's Judiciary Committee. Four of them were nominated in May of this year so we can't say they're being held up unreasonably, and to get them confirmed this year is a pipe dream. Haynes is caught -- thanks to preening putz Lindsey Graham and a couple of others -- in a maze he'll never escape. Would it be great to get even the three floor votes? Sure. But don't bet on it, even if Congress stays through its current October 6 adjournment date. McCain's group still controls floor votes and confirmation of conservative judges is not one of its priorities.

UPDATE @ 11:30

C-SPAN is carrying the Senate field hearing live. The prepared testimony is online, at the link above (FIELD HEARING--Comprehensive Immigration Reform)

The witnesses today are all strongly in favor of increased immigration levels. This hearing is a farce, compared with the more balanced "Immigration Hearing - Tuesday, April 25, 2006", where a set of information more useful for policy-making was presented.

A House hearing (by the Committee on International Relations, Subcommittee on International Terrorism and Nonproliferation) is scheduled for today as well, at noon eastern time. Hopefully it will be televised too. See Immigration hearings to stir pot by Nicole Gaouette of the Los Angeles Times for a brief rundown of the House plan, and the proposed response by (some) Democrats.

Link to Subcommittee on International Terrorism House hearing of July 5, and Link to House hearing scheduled for Friday, July 7.

UPDATE July 9 @ 14:25

Links to today's talk show transcripts and podcasts (not all of which are online, as of yet), and a snip of a news story that isn't apt to make much in the way of a splash.

Sen. Hatch Helps Secure Release of Music Producer Dallas Austin

Hatch spokesman Peter Carr said he did not know whether the senator and Austin had ever met, but he confirmed that both employ Atlanta entertainment lawyer Joel A Katz. Hatch has written and recorded hundreds of religious and patriotic songs.

Talk Show Transcript Links - Jul 09, 2006

CBS: Face The Nation
Undersecretary of State R. Nicholas Burns
McCain, Dodd
http://www.cbsnews.com/htdocs/pdf/face_070906.pdf

CNN: Late Edition
Lindsey Graham, Barbara Boxer
Undersecretary of State R. Nicholas Burns
Iraqi Ambassador Samir Al Sumaidaie
Alexander Haig, Zbigniew Brzezinski
http://transcripts.cnn.com/TRANSCRIPTS/0607/09/le.01.html

Fox News Sunday - Nicholas Burns
http://www.foxnews.com/story/0,2933,202692,00.html
Fox News Sunday - Wendy Sherman, Peter Hoekstra, James Woolsey
http://www.realclearpolitics.com/articles/2006/07/nicholas_burns_rep_pete_hoekst.html

Fox News Sunday Podcast (MP3 - 45 Mb)
http://media2.foxnews.com/podcasts/070906_fns_podcast_128.mp3
http://www.foxnews.com/xmlfeed/podcasting/0,4369,118,00.xml

NBC: Meet the Press (MP3 podcast - 12 Mb)
Undersecretary of State R. Nicholas Burns
Robert Galluci, dean of Georgetown University's School of Foreign Service
Ashton Carter
Bill Richardson
http://podcast.msnbc.com/audio/podcast/pd_mtp-07-09-2006-080203.mp3

NBC - Meet the Press July 09, 2006 Transcript
http://www.msnbc.msn.com/id/13740936/

UPDATE July 10 @ 7:15

Time to start a new month in the Senate, and soon a new post, but noting here that the talk show links have been updated and corrected so all the links are working, I think. Also noting that the leak of Hoekstra's letter of May 18, 2006 has set off an interesting chain of talk.

The best commentary I've found on the subject is at Tom Maguire's "Justoneminute" blog, at Hoekstra - CIA Group "Intentionally Undermined" Administration and the more speculative What Is Heating Up Hoekstra? The second piece suggests the "program" that Hoekstra is requesting more cooperation on is the finding of WMD's in Iraq.

I don't think the finding of WMD in Iraq is the "program" Hoekstra is noting in his letter, but it is a bit of fun speculation.

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