Tuesday, September 26, 2006

Establishing Military Commissions

The bill passed the Senate at 19:04 on September 28
It passed the House, unamended, on September 29
As of October 9, the bill has not been presented to the President
9/29/2006: Cleared for White House.
10/10/2006: Presented to President.
10/17/2006: Signed into law

S.3930 - Military Commissions Act of 2006
S.Amdt.5085 in the nature of a substitute
President Bush Signs Military Commissions Act of 2006
Alberto Gonzales / Ask the White House - October 18

Amendments 5075-5088 - September 27
Amendments 5095, 5104 - September 28

Debate of Sept 27: Part I - Part II - Part III - Part IV
Debate of Sept 28: Part I - Part II - Part III

As of Tuesday, September 26, this debate is occurring in the context of H.R.6061 - The Secure Fence Act of 2006. The present statutory text under consideration is S.Amdt.5036, which supposedly represents the same system and process as described in the language of S.3930 - Military Commissions Act of 2006.

The condition of the statutory language is very fluid, with the White House version being the subject of a GOP split last week, supposedly successful negotiations culminating with the filing of S.3930 on Friday, and now a new presentation, S.Amdt.5036, said to be "the same" as the negotiated language in S.3930.

[SECURE FENCE ACT OF 2006: Page S10098]

Mr. REID. ... We have been alerted by one of my Senators that the rule XIV legislation [S.3929/S.3930] that was brought to the Senate late last week is different from the amendment that was filed tonight. So some of my folks are trying to figure out what has happened. We thought what was going to be filed as an amendment to this fence bill was the same piece of legislation that was rule XIVed. So we have now a rule XIV that has been sent up, and now we have this amendment [S.Amdt.5036]. So that has created a little bit of confusion on our side. ...

[PROGRAM: Page: S10105]

Mr. LEVIN. Is the Hamdan language which has been filed in the amendment the same as the Hamdan language that was agreed upon by the three Republican Senators with the administration?

Mr. FRIST. Yes. Yes, it is. I think what the Democratic leader said is that there are some changes, but as to what was introduced--Friday, I believe? Friday--so there are some small changes in that, but it has been agreed to by all the parties concerned.

Let's compare the statutory language that establishes jurisdiction over the person:

Language in S.3930 ...

     Sec. 948a. Definitions
     In this chapter:

     (4) UNLAWFUL ENEMY COMBATANT- The term `unlawful enemy combatant' 
         means an individual engaged in hostilities against the United 
         States who is not a lawful enemy combatant.

compared with the Language in S.Amdt.5036 ...

     Sec. 948a. Definitions
     In this chapter:

            (1) UNLAWFUL ENEMY COMBATANT.--(A) The term 'unlawful 
     enemy combatant' means--

            (i) a person who has engaged in hostilities or who has 
     purposefully and materially supported hostilities against the 
     United States or its co-belligerents who is not a lawful enemy 
     combatant (including a person who is part of the Taliban, al 
     Qaeda, or associated forces); or

            (ii) a person who, before, on, or after the date of the 
     enactment of the Military Commissions Act of 2006, has been 
     determined to be an unlawful enemy combatant by a Combatant 
     Status Review Tribunal or another competent tribunal established 
     under the authority of the President or the Secretary of Defense.

            (B) CO-BELLIGERENT.--In this paragraph, the term 
     'co-belligerent', with respect to the United States, means any 
     State or armed force joining and directly engaged with the United 
     States in hostilities or directly supporting hostilities against 
     a common enemy.

Just some "small changes ... been agreed to by all the parties concerned." You be the judge. It doesn't engender a sense of "trust" in my mind. Just the opposite. Not a big deal, with politicians one must always read their fine print. Sometimes, what at first appears to be a radical change amounts to very little in practice and fact. The major difference here is that the sole authority for determination of UEC status is a CSRT.

Keep in mind that S.3930 is the administration's language, not the language proposed by Warner/McCain/Graham. The administration is revising its own proposal for statutory language.

The same subject, and more, is discussed at Marty Lederman's It Gets Worse, posted earlier this morning.

Commentary between the above horizontal bar and the next is unrelated to the military commissions debate. Skip to the next horizontal bar for military commissions debate ...

12:30 - The Senate stands in recess until 14:15. Zero substantive discussion of the fence aspect of the pending legislation, zero substantive discussion of the military commissions aspect of the legislation. At some point I think it will be necessary to divorce the fence language from the bill, just to permit a Senator who is for the military commissions but against the fence (or the reverse) to be able to make principled votes.

14:30 - Senators Domenici, Bingaman and Craig talk for half an hour to talk about legislation to be introduced this evening, by Senators Frist and Reid. S.3946 - National Competitiveness Investment Act.

15:30 - Senator Kennedy took some time talking about the cloture vote, as though it relates only to the fence and immigration, and expresses that he wishes the bill could be amended to be comprehensive immigration.

Morning business expired at 15:25

16:17 - Still little discussion (virtually none) on the fence aspect of H.R.6061. Senator Durbin is presently talking about minimum wage.

16:55 - Senator Enzi is working to advance S.2823 - Ryan White HIV/AIDS Treatment Modernization Act to a vote. If the bill doesn't pass by September 30, some states will lose funding. Some Senators object as a matter of getting more funding for their states, and the request for agreement to vote is shot down with an objection from the DEM side of the aisle (doesn't mean all the holds are DEM, just at least one).

Senator Coburn rises to emphasize that this objection causes real harm to real people whose treatment depends on this source of funding. Senator Burr points out that the radical proposal is to have funding follow the patient (which has the effect of states losing funding if covered patients leave), and chastises the holds.

17:38 - Senator Enzi still going strong on a range of subjects, such as S.1955 - Health Care Insurance, but not on anything relating to border fence or military commissions.

Meanwhile, read the text of the April National Intelligence Estimate, this is the one that was declassified earlier today, and that was the subject of news reports over the weekend.

18:00 - Quorum call for the last 10 - 15 minutes. Lovely music.

18:15 - Senator Harkin - resolution in memory of Paul Wellstone, joined by Senators Durbin, Coleman and Dayton. Mental Health Parity(?) to be taken up in the 110th Congress.

18:24 - Harkin done, resume quorum call.

18:28 - McConnell closes down the Senate

First and second reading of S.3946 - National Competitiveness Investment Act
Passed H.R.5574 - Children's Hospital GME Support Reauthorization Act of 2006
Passed S.3421 - A bill to authorize major medical facility projects and major medical facility leases for the Department of Veterans Affairs for fiscal years 2006 and 2007
Passed H.R.5187 - To amend the John F. Kennedy Center Act to authorize additional appropriations for the John F. Kennedy Center for the Performing Arts for fiscal year 2007
Passed H.C.Res.480 - To correct the enrollment of the bill H.R. 3127

Treaty moved to the Executive Calendar, relating to the adoption of an additional distinctive emblem under the Geneva Conventions (this is use of Red Cross, Red Crescent, etc., and is totally unrelated to the military tribunals debate).

18:33 - the Senate stands in adjournment until 9:30 Wednesday morning.

Morning business until 10:30
One hour of debate before taking the cloture vote on limiting debate on S.Amdt.5036, the military tribunals amendment to H.R.6061.

Still considering handling the Military Tribunal legislation on a stand-alone basis, depending on negotiations between the majority and minority leaders. If this is done, the cloture vote to proceed to the vote on H.R.6061 would be vitiated (tribunals would be divorced from fence - fence bill fate uncertain, tribunal fate uncertain, but the fate of each would be independent of the fate of the other)

September 27 - 10:59 AM
Senator Rockefeller's kudo's to Jeffords are over the top syrupy. Still no substantive debate on the military tribunals proposal. Jeffords notes the absence of a quorum. Cochran announces that conference reports for DoD and Homeland Security appropriations, and says he expects at least one of them to be called up later today.

11:26 - Senator Hutchison spent 20 minutes or so talking abut the war in Iraq, the leaking of intelligence information, and the war on terror.

11:40 AM - The time for starting the cloture vote has arrived, and still no debate on the subject at hand, the one hour pre-cloture debate time was used by talking about "other stuff." I'm sure the objectors don't mind the clock ticking, but it must be giving Senator Frist and the administration some heartburn.

The action in the House is presently on the military tribunals bill. They are at least debating the measure. C-SPAN2's screen says the Senate is today on the U.S-Mexico border fence.

12:07 PM - Durbin is done. Senator Domenici fills time with a discussion introducing legislation that relates to nuclear waste disposal, which he says will be debated over a time spanning the next several months, at least.

12:13 PM - Domenici is done. His bill will be referred. Senator Lott asks about the time agreement, and is told the time until 12:30 is available for morning business. So, morning business and then policy luncheon recess. I'll go twiddle my thumbs for a bit.

12:33 - Senator Murray speaks to criticize Iraq, veterans care, the Republicans, etc.

13:03 - Senator Murry is done, on with a quorum call.

September 27 - 9:35 AM

A "hot" opening to the day. Subtle, but informative

Senator Frist -
Still working toward an agreement to consider the tribunal bill separately from the current arrangement (tribunal being tacked on to the fence bill) under a stand-alone time and amendment agreement. He hopes to have a time and amendment agreement worked out before the cloture vote. If agreement is reached, the cloture vote on limiting debate on the tribunal bill as an amendment will be vitiated, and the Senate would move directly to the tribunals matter.

Other action this week:
- defense appropriations conference report (maybe today)
- Homeland Security appropriations conference report
- seaport security conference report

Senator Reid -
The time agreement that Frist is working on includes taking the final vote on the military tribunals legislation ("Hamdan") sometime this evening. Amendments allowed to be offered on that and Reid is working on obtaining agreement, but has a couple of senators on the Judiciary Committee who are not yet in agreement with the proposed time and amendment allowance.

If the time agreement is not reached, cloture will (probably) be invoked on Hamdan, then 30 hours of time for debate on the amendment, then vote on the amendment, then another cloture vote for limiting debate on the underlying bill.

A "cloture on top of cloture" process with the first vote done at 1 PM on Wednesday could be used to run the clock until 1 AM Saturday morning.

Senator Leahy -
Commends the two leaders for trying to get lots done before the end of the session, and then asserts that it is he who is not agreeing to the time agreement for handling the tribunal legislation. He says he is standing in the way of the Hamdan bill as a matter of upholding the Constitution. He also says that Congressionally-proposed legislation for tribunals has been available for 5 years, and that he has a problem with the rush job represented by the current bill - sent to Congress by the administration with an order to consider and pass it in a too-compressed timeframe. He needs some amendments. He wants more time for substantive debate.

9:45 AM - That's that, until the one hour of pre-cloture debate. The Senators are giving kudos and accolades to Senator Jeffords on the occasion of his retirement.

11:41 AM - Finally! Senator Durbin talks about the military commissions bill. The tenor of his objection is "rush job" and "why do we have to do this today?" I think that's a fair question. The detainees have been there for years, what's another month of delay? The answer, of course, is the need to aggressively interrogate fresh captures in order to protect the country from terrorist attacks. But that is only one facet of the bill, the only facet that the administration says it must have "now" - is there any chance of peeling that part off for separate debate? I doubt it.

11:45 AM - Senator Durbin veers off into talking about the fence, but by 11:52 is back to the question of detainee interrogation. He inserts Haynes to his argument against the bill as proposed.

12:16 - Senator Lott speaks in support of the military tribunal bill, by pointing to the fact that terrorism exists. He's going to side with whatever the administration offers. His speech is time filler that justifies his position based on a belief that the lawyers and administration worked up the language in good faith. He disagrees with pairing the tribunals issue with the fence bill, and blames the Democrats. "Why have we gone a day and a half of no debate?" Now that is funny.

12:29 - Senator Lott ridicules concern over habeas changes with "bring on the lawyers." I have the impression that he used to be a trial lawyer himself, this is a smooth delivery.


13:15 - UC Agreement reached to set aside S.6061, and take up S.3930. Five amendments will be entertained, each with a time limit. Levin, Rockefeller Kennedy, Byrd and Specter. After debate and vote on each amendment, debate on the bill and vote on the bill. Reid does not object.

So, S.6061, the fence bill, is set aside, and Senator Frist makes opening remarks relating to S.3930.


Time agreement

Levin: substitute bill - 120 minutes
Rockefeller: congressional oversight - 60 minutes
Kennedy: interrogation - 60 minutes
Byrd: sunset - 60 minutes
Specter/Leahy: habeas - 120 minutes
General debate: 180 minutes


Ten hours total, not counting time for each vote. I doubt this will be finished today.

13:24 - Senator Levin discusses the recent legislative history; the GOP/administration split, the McCain/Warner committee bill, and now facing "the administration's bill."

The Levin amendment is a substitute, it is the McCain/Warner bill as reported out of Committee, and before the negotiated agreement between Warner/McCain and the White House, refer to S.3901 - Military Commissions Act of 2006 [Warner] for likely text of the Levin amendment.

13:40 - quorum call, time to be charged equally to both sides.

Associated Press report at 13:46

Path Cleared for Detainee Legislation

... House Republicans succeeded on a vote in blocking any Democratic amendments to the legislation. In the Senate, GOP leaders won an agreement from Democrats to debate the bill for less than a dozen hours and then vote on it.

Four Democrats and Republican Sen. Arlen Specter of Pennsylvania are being given opportunities to offer amendments in the Senate, but all were expected to fail with lawmakers eager to adjourn this weekend ...

Passage is a good prediction. With agreement to move to the vote on the bill, cloture isn't a hurdle. With the majority of the Senate being GOP, each amendment will fail - each amendment is a deal breaker for getting the bill through House/Senate conference.

I expect there will also be a manager's amendment (making a total of 6 amendments) that transforms the language of S.3930 (Friday's version from the administration) into the language of S.Amdt.5036 (Monday's version from the administration). That amendment will also pass.

14:08 - Senator Warner rises in support of S.3930, distancing himself from the very bill that emerged under his name from the committee that he chairs.

14:22 - Levin Amendment No. 5086 introduced, a substitute for the pending bill S.3930, where the substitute is or resembles S.3901, the Warner/McCain language before negotiations with the administration.

16:21 - Obviously I'm not blogging the debate in detail, and don't plan to in realtime for the balance of this debate. I will endeavor to post the results of roll-call votes, should I be near the keyboard. The only interesting unknowns that will emerge are the exact margins of rejection of each amendment, who votes "against the war on terror," and the time of day for each of the votes. Roll call vote on the Levin amendment started at 16:33.

16:33 - [My PREDICTION was 35-60]
LEVIN Amendment No. 5086, a substitute for the pending bill S.3930, where the substitute is or resembles S.3901, the Warner/McCain language before negotiations with the administration, was
REJECTED on a 43 - 54 vote.
GOP YEA Vote: Chafee
DEM NAY Vote: Nelson (NE)

18:12 - Debate is underway on the Specter Amendment No. 5087 introduced, to modify the application of habeas

I haven't seen the language of the pending amendment. C-SPAN2 says the pending amendment "strikes the language giving habeas," and the language from S.Amdt. 5063/5065 was

            On page 94, line 2, strike the quotation marks and the 
     second period and insert the following:

            ``(3)(A) Paragraph (1) shall not apply to an application 
     for a writ of habeas corpus challenging the legality of the 
     detention of an alien described in paragraph (1), including a 
     claim of innocence, filed by or on behalf of such an alien who 
     has been detained by the United States for longer than 1 year.

            ``(B) No second or successive application for a writ of 
     habeas corpus may be filed by or on behalf of an alien described 
     in paragraph (1).''.

18:18 - Senator Warner says the vote on the Specter amendment will occur tomorrow, as will the vote on the other two(?) pending amendments. He takes the Senate off the bill, and onto morning business.

The language of Specter's S.Amdt.5087 is

      On page 93, strike line 9 and all that follows through page 94, line 13.

September 28

The Levin amendment (to pass the original Warner/McCain language) was defeated on a party-line vote, with Chafee and Nelson (NE) crossing over. Debate on the Specter amendment, to provide some habeas corpus rights, is all but complete. A vote on it is planned for this morning.

I predict that the Specter amendment, and the two or three others that remain to be debated, will be defeated on nominally party-line votes, and the bill will pass also on a nominally party-line vote.

[PREDICTION - 45-54, party line, except Specter, Chafee and Nelson (NE)]
SPECTER Amendment No. 5087 to strike the new language that modified 28 USC 2441, i.e., habeas corpus, was
REJECTED on a 48 - 51 vote.
GOP AYE Votes: Chafee, Smith, Specter, Sununu
DEM NAY Votes: Nelson (NE)

UPDATE @ 16:27

I'm back. Will fill in subject of votes, actual results, etc. as time permits.

[PREDICTION - 45-54, party line, except Specter, Chafee and Nelson (NE)]
ROCKEFELLER Amendment No. 5095 provide for congressional oversight of certain Central Intelligence Agency programs, was
REJECTED (at 16:51) on a 46 - 53 vote.
GOP AYE Vote: Chafee


[PREDICTION - 45-54, party line, except Chafee and Nelson (NE)]
BYRD Amendment No. 5104 to sunset the military tribunals on a date certain, was
REJECTED (at 17:15) on a 47 - 52 vote.
GOP AYE Votes: Chafee, Specter [Nelson (NE) voted AYE]


Such acts, each of which is prohibited by the Army Field Manual include forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.
The legislation being passed does not prohibit SOME of these techniques. Contrary to McCain's prevaricating, waterboarding and stress positions are permitted. Read the statute, it's in there in relatively plain language. Interrogation is permitted to the extent it does not violate 18 USC 2340(2) or 18 USC 113.

Kennedy's amendment is tactically stupid. He should have just enumerated waterboarding, which McCain says shouldn't be done. How could McCain turn an express forbidding of waterboarding down, if McCain wants to prohibit waterboarding?

[PREDICTION - 45-54, party line, except Chafee and Nelson (NE)]
KENNEDY Amendment No. 5088 to enumerate certain practices as forbidden interrogation methods, was
REJECTED on a 46 - 53 vote.
GOP AYE Votes: Chafee, Specter
DEM NAY Vote: Nelson (NE)


McCain is not accurately describing the limits of interrogation according to the bill he supports, and he knows it. His speech is pure ass covering. Read the statute.

Leahy gets his licks in. Focuses on the habeas corpus provision. He veers off into an accusatory argument, that the bill is politically motivated to get votes and donations. The finger pointing continues - but I strongly prefer argument on the merits.

Levin points out the recent history, i.e., the Warner, McCain, Graham bill, S.3901, was rejected by the very same Senators who insisted on it. The President's mojo is stronger than the Senators'. Simple as that. History will record this bill as "President Bush's Bill," and I think will judge Congress as abdicating their duty. That is, historically, a repeating pattern.

Senator Reid reiterates that the Warner, McCain, Graham bill, S.3901, was rejected by the very same Senators who insisted on it, and in gentle words, says that they got rolled by the White House - perhaps willingly.

It's funny as hell that Reid says the amendments were rejected "on a straight party-line vote." He's inviting Chafee in, and kicking Nelson (NE) out.

Frist delivers the last remarks before the vote. He blames SCOTUS for the Hamdan decision. But I'm thinking military trials and executions could have happened by now, what, 5 years? Hamdan wasn't challenging his conviction. Quirin was.

Voting on the bill started at 18:37

[PREDICTION - 51-48, party line, except Chafee, Specter, Smith, and Sununu]
S.3930 - Military Commissions Act of 2006 was
PASSED (at 19:04) on a 65 - 34 vote.
GOP NAY Vote: Chafee
DEM AYE Votes: Carper, Johnson, Landrieu, Lautenberg, Lieberman, Menendez, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar and Stabenow

I really blew the prediction. Crossovers verified. Probably Senators up for election this cycle.

Interesting. Specter voted AYE. He's not as attached to the habeas provision as I thought.

I think this bill will bite us in the ass. I think the Republicans engaged in sloppy rhetoric and logic (not that the DEMs did any better), and in some cases, outright misrepresentation (not that the DEMs did any better). There were many many straw men set up and knocked down, many invalid comparisons and parallels, godawful implicit assumptions that "took" the final question as answered (everyone we are talking about is the worst of the worst, therefore I'll talk about something other than how the United States will determine who is the worst of the worst), and in general an absence of serious debate.

Something as important as this, that's been kicked around for 5 years, should not result in a bright-line party-line vote. As for Congress, each side will blame the other for the split being partisan. I have a sense that the GOP just gave the president what he asked for, and the Congress as a whole punted the details to the lawyers and the courts, to be sorted out later. In other words (pick your preferred acronym), "situation normal, all f'd up [SNAFU]", or "f'd up beyond all repair [FUBAR]."

History will record this bill as "President Bush's Bill."
I sincerely hope it works out for the best.

Action and debate have moved over to S.6061 - The Secure Fence Act of 2006, where the Senate will take a cloture vote to vote on the underlying bill, with the cloture vote following passage of the military tribunals bill, and just a few minutes of debate. I think that cloture vote will fail to get the 60 votes necessary - the DEMs (and some Republicans) want more debate, or the right to amend the house bill.

Follow up links, news reports, articles, etc.

[Sept 29] 08:15 AM by Howard Bashman - List of articles
[Sept 28] 10:44 AM by Howard Bashman - ethical fight over the right of detainees to self-representation and to refuse appointed counsel.

UPDATE @ October 9

The bill is still in Congress, not yet being presented to the President for signature. It has been "Cleared for the White House," meaning, I think, that the text of the House-passed and Senate-passed bills is in every respect the same.

UPDATE @ October 10

10/10/2006: Presented to President.

Specter's Role in Passage Of Detainee Bill Disputed
By R. Jeffrey Smith - Washington Post Staff Writer
Monday, October 16, 2006; Page A19

The more extreme version would have deleted the bill's suspension of habeas corpus rights. The less extreme alternative, which Specter co-sponsored with Sens. Patrick J. Leahy (D-Vt.) and Gordon Smith (R.-N.H.), would have allowed detainees to file a single habeas corpus petition after a year of detention.

The above article is discussing the difference between S.Amdts. 5082 and 5087, and claims that a compromise amendment (5082) was not offered, because it had a chance of passing. Instead, a more extreme version was offered and defeated.

Same idea I noted in above regarding Kennedy's tactical stupidity. The power lies in the hands of Senate leadership, which has control over which amendments are permitted to come up for debate. The "debate" on the floor of the Senate is mostly orchestrated in advance.

UPDATE @ October 17

President Bush Signs Military Commissions Act of 2006


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