Wednesday, July 12, 2006

Senate Live - July 12, 2006

H.R.5441 - The Homeland Security Appropriations Bill

Debate of July 10
July 11: Part I and Part II

Text of Amendments 4547 - 4549
Text of Amendments 4550 - 4580


FEINSTEIN Amendment No. 4556, to amend chapter 27 of title 18, United States Code, to prohibit the unauthorized construction, financing, or, with reckless disregard, permitting the construction or use on one's land, of a tunnel or subterranean passageway between the United States and another country and to direct the United States Sentencing Commission to modify the sentencing guidelines to account for such prohibition.

CORNYN Amendment No. 4577 (to Amendment No. 4556), to provide for immigration injunction reform.


Senate Review - July 11, 2006 has a number of news stories from today.

Senator Frist indicates that he expects the Homeland Security Appropriations Bill to be completed tomorrow, and indicated that late nights are in the works if necessary to accomplish this schedule. No hints about what actions are planned to follow the vote on the HS Appropriations Bill.

UPDATE @ 10:04

I opined yesterday that the Hamdan decision is not going to be effective against the Terrorist Surveillance Program, in disagreement with that particular point of Andy McCarthy's article. I just now found Matthew J. Franck's comments on the effect of Hamdan, and suggest that his analysis puts some substance to my terse -- and more or less conclusory -- expression.

Matthew writes from a Congressional powers angle, I was thinking more in terms of the administration's power to surveil events that are more in the nature of foreign threats. But I do appreciate the more detailed (eventually necessary) analysis as Matthew's article probes the constitutional grant of power to Congress.

UPDATE @ 13:30 Andrew McCarthy responds to Matthew Franck, and expands on the area he and Matthew are in agreement on - that the Court has stepped into the business of Congress and the administration.

UPDATE July 13: To keep the McCarthy/Franck dialog together, and mindful that few people read this blog, I feel free to note here ... Matthew Franck responds to Andrew McCarthy response, hits on Congressional power very well, and brings up the matter of standing as a "defense" to a challenge to the NSA surveillance program. I think "standing" is relatively weak ground compared with inherent responsibility and authority, because a court can find standing on various rationales. And if it finds standing, it can undermine an inherent power of executive secrecy. Of course, not JUST by finding standing. In order to undermine a rightful power, a court would also have to err in application of Constitutional principles.

UPDATE @ 10:32

Senators Reid and Durbin are playing tag team against what they characterize as a Republican "do nothing" Senate, for bringing up flag burning, gay marriage and the estate tax - instead of stem cell research, the cost of energy/gasoline, and federal assistance for college tuition.

They further complain that the debate agreed to under UNANIMOUS CONSENT AGREEMENT -- H.R. 810, S. 2754, S. 3504 has not yet been scheduled, and Senator Durbin suggests that the Senate take up the 12 hours of debate on a Monday or a Friday. Now that is funny. Oh my, now Durbin even offers a Saturday session to get it done. If I was Senator Frist, I'd call their bluff on that one, and schedule the debate to start on Saturday morning, July 15, 2006. But aside from the timing of the debate, the public is going to wonder why a bill that got more than 50, but less than 60 votes is being rejected.

Senator Durbin notices that there is a state of criminal emergency in Washington, DC due to 13 murders in 12 days, and contrasts this with Baghdad with 100+ murders in 3 days. A weak segue to objection to war in Iraq, but then, Senator Durbin is well noted for forwarding weak arguments.

Oh ... Senator Reid just got a paper that says Senator Frist has scheduled the stem cell research debate on Monday, July 17. Not as aggressive a schedule as I would have ordered, but its now "next up," best I can tell, after the debate on the HS Appropriations bill. And hats off to Senator Reid for stating that 60 votes are required to pass any of the three measures involved in the unanimous consent agreement.

UPDATE @ 10:51

Senator Coburn (Medical Doctor) takes the embryonic stem cell proponents to the woodshed, using reports from scientific research. I suggest that Coburn's argument would be much more effective if he showed where the money for embryonic stem cell research would go, because arguments that bottom out on the ethics of life are a waste of time in Congress.

And then begins the offering of amendments, with BINGAMAN Amendment No. 4591 being the first put up. This amendment is intended to reimburse local and state law enforcement for certain costs related to criminal activities perpetrated by illegal aliens.

BINGAMAN Amendment No. 4591 was
PASSED on unanimous consent, without a roll call vote.

Senator Coburn indicates that he will be offering five amendments, the first one COBURN Amendment No. 4562, which aims to change Senate/House procedure to cause legislative language, earmarks in particular, appear in printed language BEFORE the Senate votes on a conference report. This language has been agreed to in the past, but was dropped in conference. Hey, if it's okay to drop the "no permanent bases in Iraq" language (agreed by roll call vote by both House and Senate) during conference, why not drop this too? I see no harm in accepting the amendment, seeing as how it can be dropped in conference.

UPDATE @ 11:08

COBURN Amendment No. 4585, to dispense with a study relating to maintenance of the LORAN system, because all government agencies say they don't need or use LORAN, as it has been supplanted with GPS. The USCG does not use LORAN for either primary or secondary, and Senator Coburn goes on to list other agencies that don't use, want or need LORAN; FAA, DOT, and Homeland Security.

UPDATE @ 11:23

COBURN Amendment No. 4590, regarding improper payments by the Federal government, including food stamps, Medicare, Medicaid, military, etc. Homeland Security asserted that it made zero improper payments, and Senator Coburn says this is a result of not studying and reporting, and that a billion dollars of improper payments are known to have been disbursed in the wake of hurricane Katrina.

Some confusion between Amendments numbered 4589 and 4590, with much of the debate being under the number 4589. At any rate, debate moves back to the "get rid of LORAN" amendment, 4585, with Senators Stevens and Murray present. Senator Murry objects to dismantling LORAN, and it appears that Stevens does as well - he is pushing to modernize LORAN.

UPDATE @ 12:03

Change of players ... I zoned out during Stevens' defense of LORAN, and Coburn's rebuttal, if there was any. A new issue is up ...

BIDEN Amendment No. 4553 relating to rail security. Senator Biden uses yesterday's events in Bombay, India as rationale to support tightening security on rail transportation.

Some specifics in the 3.3 billion dollars of increased spending include:

  • $670,000,000 for tunnel upgrades along the Northeast corridor
  • $250,000,000 for passenger and freight rail security grants
  • $100,000,000 for research and development of bomb detection technology
  • $65,000,000 for intercity passenger rail security upgrades, of which $25,000,000 shall be used--
    • to provide a 25 percent salary increase for existing Amtrak Police personnel
    • to expand the Amtrak police force by 200 officers

UPDATE @ 12:20

A very brief interruption to Senator Biden, by Senator Stevens, who announces that he has reached an agreement with Senator Coburn on the LORAN issue, where Senator Coburn has agreed to amend his amendment to preserve the rights of those people who currently rely on LORAN - which is geographically defined as parts of Alaska. All other parts of the LORAN system would be dismantled.

Senator Biden got a note saying that he is urgently needed, and asks to be excused. I wonder what this is all about.

COBURN Amendment No. 4585 was
PASSED on unanimous consent.
Purpose: To dismantle LORAN in most of the country, and conduct a study on the cost benefit of maintaining LORAN in certain geographic areas of Alaska.

Senator Biden returns, noting that whatever the note was about, it wasn't urgent. And he's back to discussion relating to S.Amdt.4553.

UPDATE @ 13:13

THUNE Amendment No. 45xx introduced, providing financial incentives for investing in ethanol distribution infrastructure. He says E-85 fuel in SD is 2 bucks a gallon. I wonder if there is an antitrust violation, or if somebody is running a loss-leader promotion, because it costs more than that to produce a gallon of ethanol.

So, here comes the pork. Just my opinion, but I think E-85 facilities ought to be justified without providing a payment or other incentive. The government should just provide an orderly framework for conducting business.

---===--- has provided a a link to Judge Boyle's response to Senators Specter and Frist. Judge Boyle's nomination (reported out of Committee June 16, 2005 - a year ago) is ostensibly stalled on allegations of his having a conflict of interest in cases he decided. Ed Whelan describes the "issue" well, as Boyle detractors present it. I think the nomination is stalled due to lack of spine on the part of the Republicans. None of the Senators wants to open the nomination can of worms, so they pretend it isn't there.


VITTER Amendment No. 4615 prohibits confiscation of legally owned guns during an emergency, such as was done in New Orleans in the wake of hurricane Katrina. This will pass in the Senate. I'm curious how much debate will occur, if any, and whether the measure will survive conference. I'm also curious as to the remedy proposed if a local government actor violates the law - takes the guns. I see a big loophole in the "used lawfully" language, where state and local actors can pass laws that restrict firearms use. "Us v. them" and all that.

UPDATE @ 13:30

Andrew McCarthy responds to Matthew Franck on the impact of the Hamdan case on the NSA's Terrorist Surveillance program. Interesting to me is that Andrew's analysis inclines to give Congress more right to regulate surveillance than to regulate the nature of military tribunals - where my opinion comes down diametrically opposite. The difference, I think, is due to Andrew implicating American citizens in the surveillance where I came at the surveillance as a matter of gathering foreign intelligence - and also on my consideration of the relative invasive nature of the exercise of the government power, that is, wrongful incarceration vs. overhearing something that is rightfully none of the government's business, "wrongful overhearing" if you will.

UPDATE @ 14:35

Senator Gregg raises a budget point of order against Biden's amendment. Biden moves to waive the budget point of order, and there is a call for a roll call vote. Recall that it takes 60 votes to waive a budget point of order.

The motion to waive the budget point of order against
BIDEN Amendment No. 4553 was
REJECTED on a 50 - 50 vote.
GOP votes to waive: Allen, DeWine, Hutchison, Santorum, Snowe, Specter, Talent

UPDATE @ 15:03

BYRD Amendment No. 4614 was called up by Senator Gregg, and was
PASSED by unanimous consent. There was no debate or discussion that shed light on the contents or purpose of the amendment, but obviously it isn't contentious.

BYRD Amendment No. 4620 was
PASSED by unanimous consent.
Purpose: To improve security at chemical facilities.

BAUCUS Amendment No. 4621 was
PASSED by unanimous consent.
Purpose: To provide protection at the US/Canada border using unmanned aerial vehicles. This amendment authorizes a pilot program.

UPDATE @ 16:50

A break in Homeland Security Appropriations Bill action. Given the pace and contents of amendments, it looks as though this bill will easily wrap up by tomorrow afternoon.

Senator Durbin rises to talk as in morning business, and addresses a bill relating to child marriage. He notes that in some countries, girls as young as 7 or 8 years old are married.

Lawmakers Pledge Support for Curbing Child Marriage in Developing World

... Sen. Richard Durbin (D-IL) said he plans to introduce a bill that would direct the U.S. Department of State to curb child marriage. Durbin also said the bill would provide assistance and support to children who are married.


Child Marriage Puts Girls at Risk of HIV/AIDS and Early Pregnancy
10 Dec 2004

... Durbin currently is seeking a Republican co-sponsor for the bill, which he plans to introduce in January, according to Joe Shoemaker, Durbin's press secretary.

Better late than never.


Senator Reed of Rhode Island rises to criticize the administration on its handling of economic policy and economic news - in particular blaming the administration for deficit spending. His ultimate objective is to justify his objection to tax reduction.


From JURIST - Paper Chase comes an article, Hamdan ruling won't affect NSA surveillance program: DOJ letter, that reports a response to Senator Schumer from the Department of Justice, in the form of a letter from Assistant Attorney General William E. Moschella. I don't find Moschella's rationale compelling, as it appears to rely on the "authorized by the AUMF" argument that I find weak and unconvincing.

In his Monday letter to Schumer, Moschella said that Hamdan nontheless did not cast doubt on the legality of the NSA program because the Foreign Intelligence Surveillance Act of 1978 (FISA), unlike the UCMJ, contains a provision that "expressly contemplates that Congress may authorize electronic surveillance through a subsequent statute without amending or referencing FISA." Thus, the relevant precedent was not Hamdan but Hamdi v. Rumsfeld, a 2004 case in which the Supreme Court held that the AUMF authorized the president to detain an American citizen classified as an enemy combatant, despite a previous statute providing that "[n]o citizen shall be imprisoned or otherwise detained ... except pursuant to an Act of Congress."


Senator Clinton up to resume debate on the Homeland Security Appropriations Bill, and grousing that federal funding to NYC for terrorism detection and prevention was cut. She, Schumer and Mikulski are filing an amendment to increase block grant funding, to, in her words, "get the funding up to the level of 2005." I believe this is CLINTON Amendment No. 4576, which increases homeland security spending by 790 million dollars, noted as being in the nature of "emergency spending." One has to dig into the language of the bill to find the beneficiaries of the increased spending, because in the amendment they are identified as:

  • On page 91, line 8, strike ``$500,000,000'' and insert ``$1,100,000,000''.
  • On page 91, line 9, strike ``$350,000,000'' and insert ``$400,000,000''.
  • On page 91, line 22, strike ``$1,172,000,000'' and insert ``$1,312,000,000''.
  • On page 92, line 1, strike ``$745,000,000'' and insert ``$885,000,000''.

Here is the PDF of HR 5441 RS, which can be used to add substance to the references, and here is a conversion to text of the pages relevant to the Clinton's amendment No. 4576 ...

 HR 5441 RS
 2                 STATE AND LOCAL PROGRAMS
 3       For grants, contracts, cooperative agreements, and
 4 other activities, including grants to State and local govern-
 5 ments for terrorism prevention activities, notwithstanding   
 6 any other provision of law, $2,393,500,000, which shall be
 7 allocated as follows:
 8            (1) $500,000,000 for formula-based grants and
 9       $350,000,000 for law enforcement terrorism preven-
10       tion grants under section 1014 of the USA PATRIOT
11       ACT (42 U.S.C. 3714): Provided, That the applica-
12       tion for grants shall be made available to States with- 
13       in 45 days after the date of enactment of this Act;
14       that States shall submit applications within 90 days
15       after the grant announcement; and that the Office for
16       Domestic Preparedness shall act within 90 days after
17       the grant announcement: Provided further, That not
18       less than 80 percent of any grant under this para-
19       graph to a State (other than Puerto Rico) shall be
20       made available by the State to local governments
21       within 60 days after the receipt of the funds.
22            (2) $1,172,000,000 for discretionary grants, as
23       determined by the Secretary of Homeland Security, of
24       which--

      HR 5441 RS
 1                (A) $745,000,000 shall be for use in high-
 2           threat, high-density urban areas;
 3                (B) $210,000,000 shall be for port security
 4           grants for the purposes of section 70107(a)
 5           through (h) of title 46, United States Code,
 6           which shall be awarded based on risk notwith-
 7           standing subsection (a), for eligible costs as de-
 8           fined in subsections (b)(2), (3), and (4);
 9                (C) $5,000,000 shall be for trucking indus- 
10           try security grants;
11                (D) $12,000,000 shall be for intercity bus
12           security grants;
13                (E) $150,000,000 shall be for intercity pas-
14           senger rail transportation (as defined in section
15           24102 of title 49, United States Code), freight
16           rail, and transit security grants; and
17                (F) $50,000,000 shall be for buffer zone pro-
18           tection grants:
SCHUMER Amendment No. 4587 to increase spending for NY/NJ mass transit security. He's asking for "only" 350 million dollars, and notes this is much less than what Senator Biden had proposed via amendment. The same pages (91 and 92) of the proposed bill are used to compare Clinton's No. 4576 with Biden's No. 4553. Recall that Biden's 3,300 million dollar increase went down on a budget point of order, and Clinton's amendment adds 790 million.

In short, Biden, Clinton and Schumer have introduced spending increases for improving security of (mostly) east coast ground transportation facilities, with Biden proposing 3.3 billion dollars, Clinton proposing 790 million dollars, and Schumer proposing 350 million dollars.

From BIDEN Amendment No. 4553 ...

  • On page 91, line 6, strike ``$2,393,500,000'' and insert ``$3,493,500,000''.
  • On page 91, line 22, strike ``$1,172,000,000'' and insert ``$2,272,000,000''.
  • On page 92, line 13, strike ``$150,000,000'' and insert ``$1,250,000,000''.

UPDATE @ 17:35

Senator Gregg raises a budget point of order against the Clinton amendment, and explains that he does so because there is money in the pipeline, in other bills, to cover the same need.

The motion to waive the budget point of order against
CLINTON Amendment No. 4576 was
REJECTED on a 47 - 53 vote.

GOP votes to waive: Collins, DeWine, Snowe, Specter, Talent

Now that is funny. It went down by a wider margin than Biden's amendment, even though the spending expansion was about a quarter the amount proposed by Biden.

Senator Gregg now moves debate to SCHUMER Amendment No. 4587, and raises a budget point of order against it as well.

UPDATE @ 19:16

The motion to waive the budget point of order against
SCHUMER Amendment No. 4587 was
REJECTED on a 50 - 50 vote.

GOP votes to waive: Allen, DeWine, Santorum, Snowe, Specter, Talent

A point of order is raised and sustained against CORNYN Amendment No. 4577 (to Amendment No. 4556), to provide for immigration injunction reform. The reason being that it represents material not relevant in an appropriations bill.

Senator Gregg indicates that there will be no more votes tonight, but that Menendez and the Senator from Alabama (Sessions) will be recognized to offer separate amendments. Business tomorrow will include votes, starting at about 10 AM, on several amendments.

  • MENENDEZ Amendment No. 4634
  • SESSIONS Amendment
  • Senator from Pennsylvania will introduce an amendment
  • At about noon, the Senator from Ohio will offer an amendment

MENENDEZ Amendment No. 4634, as modified, to provide funding to cover "the most dangerous 2 miles for terrorism in the United States", which is an area of transportation and communication concentration on the NJ side of the Hudson River, opposite Manhattan Island. In general, to require expenditures to be allocated on a risk-based formula. Senator Gregg indicates that he believes the Menendez amendment is a good one.

Senator Session says "We have a problem," and he is referring to immigration. He indicates his commitment to doing all he can to avoid a repeat of immigration legislation styled similarly to legislation of 1986. He says he will be offering several amendments.

I hope that Senator Sessions heeds the lesson of Cornyn's S.Amdt.4577 being struck down on a point of order, and circumscribes his amendments accordingly. It sounds as though he intends to amend this bill to increase border security and interior enforcement funding, where those lines already exist in the bill.

Read Senator Sessions' speech.
It starts on page S7402 of this link.

Senator McConnell closed down the Senate with a handful of usual non-contentious (or contentious, but merely procedural) matters.

  • S.Res.527 - expressing outrage and sympathy relating to the bombing in India.
  • S.Con.Res.108 - authorizing printing of a pocket version of the US Constitution.
  • S.Res.507 ("National Veterans Awareness Week") and S.Res.508 ("National Mammography Day")
  • S.Res.499 - ("National Fetal Alcohol Spectrum Disorders Awareness Day")
  • S.Con.Res.96 - A concurrent resolution to commemorate, celebrate, and reaffirm the national motto of the United States on the 50th anniversary of its formal adoption.
  • H.R.2872 - Minting Louis Braille commemorative coinage
  • S.3637 - Submittal of Iraq PDB's to the Congress, read a second time
  • H.R.4411 - Internet gambling prohibition, read a first time

The Senate stands in adjournment until 9:00 AM, with 30 minutes of morning business, followed by resuming on the Homeland Security Appropriations Bill. It is expected that the bill will be voted on tomorrow evening.


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