Thursday, July 13, 2006

Senate Live - July 13, 2006

UPDATE July 14 @ 8:45

Provided links to debate and text of amendments from the July 13 Congressional Record; provided minor details, listed as "????" during live posting; and at the end of the post, describe why a unanimous consent agreement was not reached on timing for taking up the water resources bill, and describe the modification to Clinton's "freeze the TSA's do-not-carry list" amendment.

H.R.5441 - The Homeland Security Appropriations Bill

Debate of July 10
Debate of July 11: Part I and Part II
Debate of July 12
Debate of July 13

Text of Amendments 4547 - 4549
Text of Amendments 4550 - 4580
Text of Amendments 4581 - 4642
Text of Amendments 4643 - 4674


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.

THUNE/TALENT Amendment No. 4610, to establish a program to use amounts collected from violations of the corporate average fuel economy program to expand infrastructure necessary to increase the availability of alternative fuels.

VITTER Amendment No. 4615, to prohibit the confiscation of a firearm during an emergency or major disaster if the possession of such firearm is not prohibited under Federal or State law.

MENENDEZ Modified Amendment No. 4634, to provide that appropriations under this Act may not be used for the purpose of providing certain grants, unless all such grants meet certain conditions for allocation. (risk/benefit)


At NRO Corner, this article recapitulates Senator Cornyn's reaction to his amendment 4577 being dismissed on a point of order.

Also at the NRO Corner, John Derbyshire deconstructs Karl Rove's speech to La Raza, including these two gems:

There was an odd little contradiction. At one point Rove seemed to claim that Mexicans just want to stay here a while to save money, to start a business in Mexico (which, said Rove, costs $5,000). Five minutes later he was talking about "Illegal immigrants who have roots in America... who want to stay..." What happened to those sojourning entrepreneurs, Karl?

And then there was the standard snow job on illegals "getting in line behind those who've applied legally..." Those who've applied legally, Karl, are waiting patiently **in their home countries** for the chance to come live in the USA. Some of them have been waiting for DECADES. If illegals are to wait in line behind them, then they too should go back to their home countries to wait. Seen from abroad, the great prize is not US citizenship; it's US residence. You are giving this tremendous prize away to law-breakers, many of whom couldn't care less about citizenship.

Pretty simple, and amazing that the snow job worked (heck, it's still working) for as long as it did. "In line behind" indeed; and why grant citizenship so easily, if all the country needs is guest workers?

---===--- reports:

Roll Call today contains an article (subscription required) that begins, "The bipartisan 'Gang of 14' will meet for the first time in two months this afternoon in a gathering intended to determine group members' attitudes on a series of outstanding judicial nominations, according to sources."

The timing is natural, as The Senate Judiciary Committee is meeting at 9:30 this morning with nominees

  • Neil M. Gorsuch (10th Cir.)
  • Jerome A. Holmes (10th Cir.)
  • Kimberly Ann Moore (Fed. Cir.)
  • Bobby E. Shepherd (8th Cir.)
(and others) on the agenda. This summary of pending Circuit Court nominations is up to date, and shows 14 pending Circuit Court nominations, 3 of which have been reported out of Committee for some time, but are "contentious." shares a letter from Manuel Miranda that calls the Senate out for its sloth in performing "advise and consent" of judicial nominations.

With regard to Hamdan and the handling of detainees at Gitmo (and tangentially relating to the balance of powers between the President and Congress when it comes to dealing with foreign nations, e.g. setting policy), I suggest reading a bit of history. We tend to look at today's events as though they are "something new, and needing to be dealt with using new tools," but new tools are often naught but a polish on the old tools.

Terrorists are today's pirates, and the civilized world settled, long ago, appropriate process and justice (death) for dealing with pirates. The pertinent term of art is "offenses against the law of nations." Without comment, a few links that I recommend for historical background -- I haven't studied this subject, so am not in a position to render my opinion any further than "it's not inappropriate to have Congress involved."

U.S. Constitution
Article I
Piracies, Felonies, and Offenses Against the Law of Nations


Blackstone's Commentaries - Volume V

(Search for "Chapter the Fifth - Of Offenses Against the Law of Nations," and then down to Section III)

III. Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to sir Edward Coke^k, hostis humani generis. As, therefore, he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community hath a right by the rule of self-defence, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property.
Blackstone is dense reading, but lays down principles of jurisdiction and applicable rules of law, including a probe into the source of that law.


Article I, Section 8, and the Law of Nations vs. The Man Who Would Be King

This is an easy read.


Presidential Order Establishing a Military Commission to Try the Lincoln Assassination Conspirators and Opinion of the Attorney General Concerning such Order

This is a great read regarding the choice of venue between civil and military courts. It's long, and dense at points. It concludes roughly as follows, which conclusion is, in my opinion, a bit of an over simplification. Just the same, the complete piece well supports the conclusion.

The fact that the civil courts are open does not affect the right of the military tribunal to hold as a prisoner and to try. The civil courts have no more right to prevent the military, in time of war, from trying an offender against the laws of war than they have a right to interfere with and prevent a battle. A battle may be lawfully fought in the very view and presence of a court; so a spy, or bandit or other offender against the law of war, may be tried, and tried lawfully, when and where the civil courts are open and transacting the usual business. ...

My conclusion, therefore, is, that if the persons who are charged with the assassination of the President committed the deed as public enemies, as I believe they did, and whether they did or not is a question to be decided by the tribunal before which they are tried, they not only can, but ought to be tried before a military tribunal. If the persons charged have offended against the laws of war, it would be as palpably wrong of the military to hand them over to the civil courts, as it would be wrong in a civil court to convict a man of murder who had, in time of war, killed another in battle.


The Executive Power over Foreign Affairs
111 Yale L.J. 231, 355 (2001)

Finally, we have also identified three hitherto poorly understood limits on presidential and congressional power. First, under the Constitution, the President only has residual foreign affairs powers. When the Constitution assigns a foreign affairs power to Congress, that allocation is an exception to the President's executive power. Hence the President cannot declare war, regulate foreign commerce, and so forth. Second, the President cannot make law as a means of implementing his executive power. Although the President can set and announce the foreign policy of the federal government, the President cannot invoke the force of law against individuals outside the government who act contrary to presidential policies. To enforce the President's foreign policy within the domestic legal system, the President must secure the assistance of Congress (or two-thirds of the Senate). Last, Congress lacks a comprehensive power to legislate in foreign affairs. Outside its specific foreign affairs powers such as declaring war or regulating commerce, and laws necessary and proper to such powers, Congress may legislate only to carry into execution the President's foreign affairs powers. Just as the President lacks the general legislative power, so too does Congress lack the residual executive power.

SANTORUM Amendment No. 4575 - to add 500 additional border guards to the underlying bill.

Following Santorum, Kyl, then vote on one or both the Santorum and Kyl amendments. Then Menendez Modified Amendment No. 4634, with time for debate being requested by Senators Collins and Leahy.

With regard to yesterday's action, I urge a read of Senator Sessions' speech, starting on page S7402.

UPDATE @ 10:23

KYL Amendment No. 4643 (modified) to add funding for 1,700 detention beds, bringing the total number of detention beds funded up to the number requested by President Bush (6,700). This amendment also includes an unrelated clause, related to reverse mortgages. Senator Santorum notes that opposition to the offset that funds the detention beds may object to this amendment on the grounds that the reverse mortgage provisions in the amendment are not germane to homeland security. See KYL Amendment No. 4580 for likely language, where the later amendment changes the number of detention beds being added.

Senator Vitter announces a modification to his 4615, the "government can't confiscate guns just because there is a disaster or emergency" amendment.

DODD Amendment No. 4641 increasing funding on pages 91 and 92 by HUGE amounts! (see Senate Live - July 12 for the text of these pages) is raised for 30 minutes of debate. Given the nature of Dodd's speech at this time, involving changes to taxing, I think he is discussing an amendment other than 4641.

UPDATE @ 10:35

Senator Specter announces a deal with the administration on the NSA-FISA dispute, per FoxNews. Details to follow, if the report is "new news."

UPDATE @ 10:43

Senator Gregg notices too, that the Dodd amendment increases spending by 16.5 billion dollars - and this increase is on top of a 35 billion dollar appropriation. In other words, the Dodd amendment is the big brother of the Biden amendment (3.3 billion, shot down on a budget point of order), the Clinton amendment (790 million, likewise shot down) and the Schumer amendment (350 million, likewise shot down). I have a feeling the Dodd amendment is destined for the same fate - and maybe even the Senators who voted to waive the budget points of order against Biden, Clinton and Schumer will not vote to waive the point against Dodd.

Senator Gregg wants to vote on the Vitter amendment, but does not yet have agreement from the Democrats. Following that, a vote on the Dodd amendment.

UPDATE @ 11:35

The motion to waive the budget point of order against
DODD Amendment No. 4641 was
REJECTED on a 38 - 62 vote.

Sarbanes made 2 points on germaneness, one on Kyl amendment 4643 (rule 16 violation, legislation on an appropriations bill) where the point of order is sustained, and the amendment falls. He makes the same point of order against the Santorum amendment, followed by rebuttal from Santorum. Senator Santorum is unable to persuade Senator Sarbanes to withdraw his point of order, and Santorum concedes that there is a legitimate point of germaneness. He asks that the provision be adopted at some time in the future. The Santorum amendment also falls on the point of order.

Cornyn for 10 minutes, discussing his amendment that was defeated on a point of order yesterday. He charges Reid with scuttling the amendment using a procedural trick, that trick being Rule 16 that objects to legislating from an appropriations bill.

Senator Collins rises to talk in opposition to the Menendez amendment. She has 20 minutes, followed by 20 minutes for Menendez. The issue is allocation of Homeland Security pork, where Menendez wants more money for New York, New Jersey and other "high risk" areas.

UPDATE @ 12:57

A series of amendments passed on unanimous consent ...

  • 4633 Allard - report to Congress on the costs and need for establishing a sub-office in Greeley, Colorado
  • 4640 Murray - 2 million dollars for radiological laboratories at Pacific Northwest National Laboratory
  • 4648 Landrieu - study locating existing Louisiana facilities and assets of the Coast Guard in the Federal City Project of New Orleans, Louisiana
  • 4639 Murray - purchase of boats for Coast Guard
  • 4617 Levin - screening of municipal solid waste for nuclear, biological and chemical hazards to be as effective as screening commercial transportation for the same hazardous materials
  • 4594 Voinovich - increase amount for necessary expenses for emergency management performance grants by 15 million dollars (page 95, line 5)
  • 4570 Lott - challenging findings of damage by flooding instead of to hurricane Katrina, said "flood" damage being covered by federal flood insurance
  • 4556 Feinstein - making border tunneling a criminal offense
The order of business is to take up a Schumer/Clinton amendment for half an hour of debate, with 20 minutes for the proponents and 10 minutes for the opponents; followed by Senator Session who is cleared to introduce 2 of his 5 amendments.

SCHUMER/CLINTON Amendment No. 4600 to restore 300 million dollars to FEMA, per the president's budget, for disaster relief (page 98, line 24).


Gorsuch, Holmes and Shepherd Approved by Judiciary Committee


UPDATE @ 13:16

CLINTON Amendment No. 4582 to freeze the TSA's "do not carry" or "forbidden objects" list at its December 1, 2005 version. The amendment is introduced because, says Senator Clinton, the TSA is considering relaxing its rules to permit small scissors and tools on board, and well, why should we mess with the rules if they aren't broken?

Senator Lott rises to ridicule the proposed Clinton amendment, and the TSA for forbidding relatively harmless objects. He wonders how many times does he have to take off his shoes because one guy tried to light his? A pretty funny rant.

Senator Gregg announced the schedule as having Sessions introduce 2 amendments, then have a vote on four amendments; Menendez, Schumer/Clinton, then the two amendments by Sessions.

UPDATE @ 13:37

Another series of amendments approved by unanimous consent. I'm sure I missed some of the numbers, so I'll not post a list here. Easy enough to find later in the record.

SESSIONS Amendment No. 4659 to fund building 831 miles of border fence.

SESSIONS Amendment No. 4660 to fund an increase of 800 additional immigration violations investigators (interior enforcement, not border enforcement), with funding obtained from offsets in other areas.


Ahhh ... finally some news comes through on Specter's announcement, reported by FoxNews (and maybe others) earlier today. The White House had quite a menu of proposed legislative options to choose between, or to fight against.

Specter Touts Deal on Eavesdropping Review
Thursday July 13, 2006 5:31 PM (GMT)
By KATHERINE SHRADER - Associated Press Writer

Alternative/Later story link:
Bush Agrees to Eavesdropping Court Review

WASHINGTON (AP) - The White House has conditionally agreed to a court review of its controversial eavesdropping program, Senate Judiciary Chairman Arlen Specter said Thursday.

Specter said President Bush has agreed to sign legislation that would authorize the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the National Security Agency's most high-profile monitoring operations.

An early version of the bill is S.2453 - National Security Surveillance Act of 2006. It's been around since the end of February. I suspect that the bill the White House is agreeable with is substantially different from S.2453. The curious will have to wait for details to be revealed later.

UPDATE @ 14:50

Senator Gregg opposes Sessions' fence appropriations amendment because it accelerates the construction schedule in an unrealistic way. Senator Sessions is willing to cut the amount in half, to fund one year, if the other half would be appropriated next year. Just the same, he is concerned that the funds won't be appropriated, in part because the President does not want the fence or the funds, therefore he does not put the money in his budget.

Senator Sessions counter argument is that the Senate vote will send a signal that it is a priority to fund building the fence, said signal being visible to the conference committee and the administration.

THUNE Amendment No. 4610 to reimburse companies for the cost of installing "gas" pumps that are adapted to dispense ethanol fuels. This came up yesterday, and I wondered why, if this is such a good deal for companies, they need to have the pumps paid for by the taxpayer. He's seeking a vote at some point, but withdraws the amendment from consideration in this bill.

Senator Gregg opposes Sessions' enforcement investigators appropriations amendment based on general priorities, and also "if the fence is built, there is less need for interior enforcement." He also objects to reducing funding for other activities, generally citing Coast Guard and other aspects of homeland security.


14:30: Senator Kyl injects, as in morning business, a condemnation of Hezbolla for launching missile salvos against Haifa and other parts of Israel, and calls on all countries to stand behind Israel. He also condemns Syria, Iran and Lebanon, and calls for sanctions.


Senator Sessions modifies his two amendments, authorizing the appropriating committee to use discretion as to where the offsetting funds come from.

UPDATE @ 15:19

MENENDEZ Amendment No. 4634 was
REJECTED on a 34 - 66 vote [Later 36-64 on changed votes by Warner and Cornyn].
Purpose: To provide that appropriations under this Act may not be used for the purpose of providing certain grants, unless all such grants meet certain conditions for allocation (risk/benefit).

UPDATE @ 15:41

The motion to waive the budget point of order against
CLINTON/SCHUMER Amendment No. 4600 was
REJECTED on a 46 - 54 vote.
Purpose: To restore 300 million dollars to FEMA, per the president's budget, for disaster relief

UPDATE @ 16:01

SESSIONS Amendment No. 4659 was
REJECTED on a 29 - 71 vote.
Purpose: To fund building 831 miles of border fence.
GOP Nay Votes: Alexander, Allard, Allen, Bennett, Bond, Chaffe, Cochran, Coleman, Collins, Cornyn, Domenici, Frist, Graham, Gregg, Hagel, Hutchison, Kyl, Lugar, Martinez, McCain, McConnell, Murkowski, Smith, Snowe, Specter, Stevens, Sununu, Voinovich, Warner

That went down hard. I think Senator Sessions was right. The Senate has a habit of approving a project for political points. It can stifle implementation by later failing to appropriate funding for the measure "approved of." I expect the next amendment will likewise go down hard, but not quite as hard because it doesn't leave a fence on the border.

UPDATE @ 16:29

SESSIONS Amendment No. 4660 was
REJECTED on a 34 - 66 vote.
Purpose: To fund an increase of 800 additional immigration violations investigators (interior enforcement, not border enforcement), with funding to come from whatever other aspects of homeland security that the conference committee chooses.
GOP Nay votes: Alexander, Allard, Allen, Bennett, Bond, Chafee, Cochran, Coleman, Collins, Cornyn, Domenici, Frist, Graham, Hagel, Hutchison, Kyl, Lugar, Martinez, McCain, Murkowski, Santorum, Smith, Snowe, Specter, Stevens, Sununu, Voinovich, Warner

REED Amendment No. 4613 was
PASSED on a voice vote.
Purpose: To prevent the Secretary of Homeland Security from taking any action to alter or reduce operations within the Civil Engineering Program of the Coast Guard nationwide.

DAYTON Amendment No. 4618 was
PASSED on a voice vote.
Purpose: to prevent the use of appropriated funds from being used in violation of EO 13149 (65 Fed. Reg. 24607; relating to greening the government through Federal fleet and transportation efficiency).

One hour of debate on Vitter's amendment, with 45 minutes under the control of Senator Durbin, and 15 minutes under the control of Senator Vitter.

And on a completely different subject ...

UPDATE @ 17:06

While waiting for the Senators to debate the Vitter amendment, I gathered the complaint by Wilson/Plame against Cheney, Rove and Libby. Here is a link - note that the file is a 4.5 Mb PDF file - but is only 23 pages long.

Link to Wilson v. Libby complaint

U.S. District Court
District of Columbia
Official Court Electronic Document Filing System

The case No. is 1:06-cv-01258-JDB
WILSON et al v. LIBBY et al
John D. Bates, presiding

For damages, the complaint alleges gross invasions of privacy, fear for safety and the safety of their children as the conduct of Cheney, Rove and Libby makes her and her family a target for those persons or groups who bear hostility to the United States and/or its intelligence officers, Plame's ability to carry out duties in the CIA were impaired and she could not carry out her career as planned, both Mr. and Mrs. Wilson have been unable to pursue professional opportunities, and both have been deprived of Constitutional rights under the First and Fifth amendments.

There are eight causes of action in the complaint.

  1. Violation of First amendment right to freedom of speech (Bivens) government officials prohibited from subjecting any individual to retaliatory action in reprisal for the exercise of the right to speech
  2. Violation of Fifth amendment right to equal protection under the law (Bivens) government officials prohibited from intentionally subjecting any individual to treatment that that is different from that accorded to others similarly situated and is without legitimate basis
  3. Violation of Fifth amendment right to privacy (Bivens) government officials prohibited from violating any individual's right to privacy by publicly disclosing personal information
  4. Violation of Fifth amendment right to property (Bivens) government officials prohibited from depriving any individual of a property interest in employment without due process
  5. Conspiracy to deprive a person of civil rights - 42 USC 1985(3)
  6. Neglect to prevent a civil rights violation - 42 USC 1986
  7. Public disclosure of private facts (classified CIA employment, where such disclosure would be outrageous and highly offensive to to a reasonable person of ordinary sensibilities)
  8. Civil conspiracy

The taxpayers will certainly be picking up the defense of Cheney and Rove, to file the 12(b)(6) motions. Meanwhile, the Wilsons and their handlers will use the lawsuit as a platform for further bloviating their version of history.

UPDATE @ 18:02

VITTER Amendment No. 4615 was
PASSED on a 84 - 16 vote.
Purpose: To prohibit the confiscation of a firearm during an emergency or major disaster if the possession of such firearm is not prohibited under Federal or State law.

Three more amendments in order, Clinton, Chambliss, and (I missed the name) before voting for passage on the entire bill. The Clinton amendment is the one that aims to freeze the TSA's "forbidden objects" list.

UPDATE @ 18:16

CHAMBLISS Amendment No. 4649 was
PASSED by unanimous consent.

CLINTON Amendment No. 4582 was
PASSED by unanimous consent.
Purpose: To freeze the TSA's "do not carry" or "forbidden objects" list at its December 1, 2005 version. The amendment has been modified, and it will be interesting to read the modification.
The modification is at the end of this post.

Now voting on final passage. I'll go out on a limb and predict unanimous passage, and guess that no Senators are absent for the vote.

UPDATE @ 18:47

H.R.5441 - The Homeland Security Appropriations Bill was
PASSED on a 100 - 0 vote.

Good guess, except for the time - I'd guessed at the vote being concluded at 18:36, but it was actually 11 minutes later than that.

Senator Warner changes his vote on Rollcall 198 to AYE.
The Senate insists of a conference and names conferees.

Senator Frist indicates that unanimous consent requests will be announced for the stem cell research package and for taking up a water resources bill. I assume both will be taken up next week.

UPDATE @ 19:10

Senator Frist proposed a unanimous consent agreement that S.728 - Water Resources Development Act of 2005 be taken up on Tuesday, with certain specified amendments being the only ones in order, and time agreements being specified for each of the amendment, then a vote on S.728. Following passage, S.728 as amended be substituted for H.R.2864, the house companion bill, and the Senate request a conference.

Objection was heard. Pure speculation on my part, but objection may be to putting the water resources act ahead of debate on the stem cell research package, which Senator Frist had agreed to take up on Monday. The stem cell package has 12 hours of debate, with no amendments in order.

A DO-NOTHING CONGRESS -- (Senate - July 12, 2006)

Mr. REID. ... I just received a press release from the leader's office, majority leader BILL FRIST's office. This is something we need to celebrate. This is from Senator BILL FRIST:

The Senate will take up the three stem cell bills on Monday, July 17, and will complete all action by Tuesday, July 18. There's tremendous promise in stem cell research .....

That is really good news. I compliment and applaud the majority leader for allowing next week to go to stem cell research. To those people watching in America, it is good news. These people who have been hopeful--like the man who tapped me on the shoulder in church--we are going to do everything we can to get the 60 votes necessary to get this sent to the President's desk.

UPDATE @ 19:25

Still working on the unanimous consent request on the Water Resources Development Act of 2005.

There is a unanimous consent agreement regarding time for debate and voting on the stem cell package, with debate to run from 12:30 to 8:30 PM on Monday, and from 10:30 AM to 3:45 PM on Tuesday, at which time three consecutive votes will be taken: S.3504, S.2754, and H.R.810.

UPDATE July 14 @ 8:45

As for the failure to close a unanimous consent agreement on taking up the water resources act on Tuesday, my speculation, that objection had something to do with the timing of taking up the stem cell research package, was wrong. The objection relates to handling of a nomination.


Mr. REID. ... On WRDA, we have cleared that on our side. And we have some nominations we have also cleared on our side. I am confident that WRDA--which we were planning to go to that Tuesday night after we finished the stem cell legislation--I am very confident we can work that out.

As I indicated, we are set mechanically to go forward on WRDA. It has been cleared on both sides, even the time on the amendments. We thought we had the nominations worked out dealing with a very important agency of our Government.

So, the water resources act is tied up in a horse trade relating to an executive nomination, which Reid directs away from being a judicial or cabinet nomination. Perhaps it is the nomination of Rickard Stickler to be Assistant Secretary of Labor for Mine Safety and Health. An attempt to advance to a vote on his nomination was discussed on June 8, to the extent a cloture motion was filed and a cloture vote was scheduled on unanimous consent. Objection to Stickler seems to come primarily from Senators Byrd and Kennedy.


CLINTON Amendment No. 4582 to freeze the TSA's "do not carry" or "forbidden objects" list was modified on the floor yesterday, and passed by unanimous consent. The modified amendment calls for a study. That's better than freezing the list at its December 2005 revision, but my gut reaction is "Sheesh."

Sec. 540. The Comptroller General shall provide a report to the Senate and House Committees on Appropriations no later than thirty days after enactment describing the impact on public safety and the effectiveness of screening operations resulting from the modification of the list of items prohibited from being carried aboard a passenger aircraft operated by an air carrier or foreign air carrier in air transportation or intrastate air transportation set forth in section 1540 of title 49, Code of Federal Regulations, as of December 1, 2005, to be carried aboard a passenger aircraft.


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