Thursday, December 14, 2006

Interlude Twixt Congresses

Starting this post with no idea of where it's headed. As usual, my sources are,, and Bear with me in the (likely) event that this post never obtains a coherent theme.

Senator Leahy summarizes his plans for the 110th Congress, and if he's true to his word (I have no reason to doubt him), the next two years are going to be "interesting."

Leahy promises 'real' oversight of FBI
By LAURIE KELLMAN, Associated Press Writer

... Leahy said he would also deal with what he says are the administration's human rights abuses by creating a new subcommittee focused on legislation on such issues as torture and detainee treatment. Democratic Whip Dick Durbin of Illinois will chair the new panel, Leahy said.


Here is another interesting development, in a completely different direction but also from a long-standing member of the U.S. Senate.

Byrd to give up W.Va. projects
By ELLYN FERGUSON - Gannett News Service

... In a joint statement, Byrd and Obey said, "There are no good options available to us to complete the unfinished work of the Republican Congress. There will be no congressional earmarks in the joint funding resolution that we will pass. We will place a moratorium on all earmarks until a reformed process is put in place."

What? No earmarks?! Whoa. Democrats doing better than Republicans at controlling spending? Heh. I doubt it, but this sure comes off that way, and foregoing earmarks is a welcome development.


Judge Roberts dismissed Hamdan's case, and interpreted Congress's statute relating to habeas corpus. The opinion is a short read, html version here for the pdf averse. It's a safe bet that this decision, "Hamdan II," will be appealed.


The ACLU has a classified document, and the government is using grand jury powers to compel the recovery of it. Rumor has it that the document refers to "torture."

Interesting in several regards. The government seems to know who provided the secret (classified) document to the ACLU; the government using grand jury subpoena as a confiscatory tool rather than an investigatory tool; and the mystery of the contents of the memo. Jack Balkin's take is, as usual, thought-provoking reading.

Link to ACLU's Motion to Quash GJ Subpoena (1Mb pdf).

Bobby Chesney's National Security Law Blog has links to more of the documents.

McConnell Announces Republican Committee Assignments
December 13, 2006


Press Gaggle by Tony Snow and Nicholas Burns
December 18, 2006

Q ... Was there any problem between -- as far as India accepting of the congressional passage of this? [India Civil Nuclear Law]

UNDERSECRETARY BURNS: We had to explain to the Indians that when Congress writes a bill, there are operative paragraphs and there are non-operative -- non-binding provisions of any bill. ...

Q Nick, what's your understanding of why Congress inserted in the bill a requirement that the President certify there's no transfer of India nuclear technology to Iran? Why is there that concern? ...

Q I guess you were sort of implying that the provision about Iran was causing some consternation or some concern with the Indians. When you went over there, what were you talking about and what, specifically, was their concern?

UNDERSECRETARY BURNS: Well, we've had a conversation with the Indians for the last year-and-half on the question of Iran. Now, India is a great country, it's a sovereign state, it's going to make its own decisions. ...

Q Is the Iranian provision binding or non-binding in the law?

UNDERSECRETARY BURNS: Well, I believe the one that -- I believe the one is a non-binding provision. It's a sense of the Congress ...


The classified document that the government was angling to retrieve via subpoena has been declassified, and the effort to retrieve it from the ACLU has been dropped.

Prosecutors Drop A.C.L.U. Subpoena in Document Fight
By ADAM LIPTAK - December 19, 2006

In an opaque and defensive four-page letter to the judge in the case, the prosecutors said they were acting in light of changed circumstances and their determination that the grand jury can obtain the evidence necessary to its investigation from other sources. ...

The document itself, declassified Friday and released by the A.C.L.U. yesterday, was not obviously confidential. ... The document collected a number of policies concerning photographs of enemy prisoners of war.

The link includes tracks to the court papers, hearing transcript, and the previously classified government document. There is no word as to whether or not the government will prosecute the government employee who leaked the paper to the ACLU in the first place.


Jackson lawyer Michael Wallace said he will ask President Bush on Tuesday to withdraw his nomination to the the 5th U.S. Circuit Court of Appeals.

More (and room for comments) at


Matthew J. Franck's piece, Ford, the Court, and Impeachment, is a good read - not just because I too take Hamilton, Story and Franck's side of the "cause for impeachment" argument.


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