Monday, July 31, 2006

Senate Live - July 31, 2006

This is apt to be a busy week, being the last one before the August recess.

The Senate is scheduled to start at 2:00 PM today, with an hour of morning business, then from 3 to 5:30, debate on ...

The Gulf of Mexico Energy Security Act

A vote on the cloture motion to end debate on the bill and move to voting on its passage is scheduled to begin at 5:30 PM.

Even though it cannot be brought up under S.3711, Senator Specter might spend some time talking about his S.Amdt.4741 - Oil and Gas Industry Antitrust Act of 2006, which changes the Clayton and Sherman antitrust statutes. Section 206 has the clever title "No Oil Producing and Exporting Cartels Act of 2006" or "NOPEC" (text here).


The House passed an estate-tax/minimum wage bill in the wee hours of Friday night, Saturday morning (1:43 AM or so), as was covered in media reports House vote raises minimum wage (Reuters - July 29) and Bill linking minimum wage, estate tax faces fight in Senate (LA Times - July 30).

The bill is considered read for the first time ...


Mr. McCONNELL. Mr. President, I ask unanimous consent that notwithstanding the recess or adjournment of the Senate, when it receives from the House a bill relating to pension reform and a bill relating to estate tax [H.R.5970 - Minimum Wage and Estate Tax Act of 2006], the bills be considered as read the first time during today's session.

Senator Reid vows to fight this bill. I expect an objection to taking it up, just as happened ...

June 8, 2006
UPDATE @ 11:20 - The cloture vote on the motion to proceed to H.R.8, repeal or modify the estate tax, is concluded, and FAILED on a 57 - 41 vote, mostly breaking on party line.
GOP crossovers: Chafee, Voinovich
DEM crossovers: Baucus, Nelson (FL), Nelson (NE)

H.R.8 was an outright repeal of all estate tax, and despite offers by Senators Baucus and Kyl to amend the bill to a compromise position (15% tax rate on the amount over 10 million dollars per married couple), that amendment was not applied, and the Senate rejected the motion to proceed to H.R.8.

H.R.5970 - Minimum Wage and Estate Tax Act of 2006 is considerably different, with a higher tax rate and also including an increase in the minimum wage. I think there will be a cloture vote on the motion to proceed to H.R.5970, and I predict that it will pass. Just picking one example, Senator Landrieu is in favor of estate tax reform.

As for the differences between H.R.8 and H.R.5970, the new bill covers many aspects of tax code. Regarding the estate tax, it gradually increases the exclusion amount over a period of years, at the same time gradually reducing the tax rate on the estate that is not covered by the exclusion. The tax rate and exclusion amount (double for a married couple) is recited as moving from 40% on amount over 3.75 million in year 2010, to 30% on the amount over 5 million in 2015. Further increases in the exclusion amount are pegged to the federal governments calculation of cost of living.

A number of tax code provisions set to expire in 2005-6 are extended to 2007-8; research credit, above the line deductions for teachers, depreciation for business property on Indian reservations, corporate donations of computers and research equipment ... the list is pretty long.

Another provision allows treating 50% of mine safety capital improvement investments as an expense in the year expended, provided the improvement is made before December 31, 2008. This will appeal to Senator Byrd and others with a strong interest in improving mine safety.

Another provision excludes uniformed government employees in the intelligence services (CIA, DIA, intelligence wings of armed services) from capital gains on sale of primary residence.

If the bill comes up (and I predict that it will), amendments may be stated in terms of page and line number of the bill. The following link is H.R.5970 - as printed (390 kB PDF), and will facilitate a determination of the effect of that sort of amendment.

Oh, at the end of the bill, the following schedule describes the proposed change to federal minimum wage ...

$5.15 an hour beginning September 1, 1997
$5.85 an hour, beginning on January 1, 2007
$6.55 an hour, beginning June 1, 2008; and
$7.25 an hour, beginning June 1, 2009.


The Senate Committee on the Judiciary has scheduled a hearing on "Judicial Nominations" for Tuesday, August 1, 2006 at 2:00 p.m. Peter D. Keisler is on the list to be considered.

More regarding judicial confirmations and the pace of handling nominations at this piece at This from one of the linked articles ...

Andy Card: Bush Wanted Woman on High Court

... Card said the subsequent criticism of Miers for not having a conservative judicial philosophy "ticked him [President Bush] off."

My comment? "It showed."

UPDATE @ 13:33

Hat tip to, the article Fair Weather Friend of the Court by Daveed Gartenstein-Ross & Adam J. White probes Senator Specter's unstated rationale(s) for holding the way he does on a variety of issues that come before the courts: abortion, NSA wiretapping, etc. I happen to agree with the eventual conclusion in the article, that being that Senator Specter (and he is not alone) prefers the courts to handle politically hot issues, and Congress to handle the issues where the political ramifications are more clear.

The article/essay includes some excellent clarifying explanation regarding the relationship between Senator Specter's proposed NSA legislation and the US Supreme Court's decision in United States v. U.S. District Court, 407 U.S. 297 (1972) ("Keith"). Few people appreciate that the "Keith" decision provided inertia and substance to facilitate crafting the FISA statutes in the first place.

UPDATE @ 14:34

Senator Reid is living up to his stated intention to fight the minimum wage/estate tax bill. He's been on a rant since I tuned it at about 2:07 PM. Besides arguing against the bill, he repeated his charge that the GOP-leadership has presided over a "do nothing" Senate.

Senator Hagel picked up when Reid & Durbin finished. Hagel talked about the Middle East, and called on President Bush to "call for an immediate ceasefire."

UPDATE @ 18:40

The motion to invoke cloture for the purpose of voting on
S.3711 - The Gulf of Mexico Energy Security Act was
PASSED on a 72 - 23 vote. (link & vote corrected Aug 1)
Not voting: Bunning, Kerry, Lautenberg, Lieberman and McCain
GOP vote against cloture: Snowe

UPDATE @ 19:20

Lucky guess on my part, Senator Specter did bring up his amendment (S.Amdt.4741) relating to oil pricing and antitrust. He also takes up the task of closing the Senate for the night.

A unanimous consent agreement has been reached that at 5 PM tomorrow, the two pending amendments will be withdrawn and the Senate will proceed to a vote on S.3711 with no intervening amendments or action.

H.R.4 (a pensions-related bill. This bill also captures import tariff details) and H.R.5970 (the estate-tax/minimum wage bill) were read for the second time and placed on the calendar.

Several other bills were passed. Among them, one that addresses assistance for Lebanese people who are relocating out of Lebanon.

The Senate stands in adjournment until 9:45 AM tomorrow.

Thursday, July 27, 2006

Senate Live - July 27, 2006

UPDATE @ July 28

Comments based on a review of the Record have been added to the end of this post. It's worth the effort to read because the Record contained a couple of obscure but interesting items. Friday is shaping up to be a couple hours of morning business, with the weekend starting at noon or thereabout.

Thursday's post starts below the line ....

A selection of items, most from yesterday, on Senate goings on. The Senate resumed session at 9:30 this morning, with S.3711 - The Gulf of Mexico Energy Security Act being the subject of business.

That bill will pass, and the debate has been more interesting than a superficial observation indicates. Energy policy in general is wrapped up in this lease sale, as are lease revenue sharing (between the federal government and the states), conditions on state spending of shared lease revenue, royalty relief and price triggers to suspend royalty relief, and long term moratoria on development of certain US offshore areas. The short version is, of course, "follow the money."

The Gulf of Mexico Energy Security Act


Mr. KYL. ... Mandatory royalty relief was provided pursuant to the Deep Water Royalty Relief Act of 1995 as an incentive to companies to undertake investment in the deep waters. The incentive was intended to provide companies that undertook these investments specific volumes of royalty-free production to help recover a portion of their capital costs before starting to pay royalties. The act also gave the Secretary of the Interior the authority to limit royalty relief based on market price. These limits are called price thresholds. Price thresholds act to set a gross revenue ceiling so that companies do not benefit from both high market prices and royalty-free volumes.

These incentives were offered at a time when oil and gas prices were low and interest in deep water exploration and development was lacking. Since the passage of the 1995 act, natural gas production is up 407 percent and oil 386 percent based on figures provided by the American Petroleum Institute.

Despite the program's successes, recent news reports and the administration's own statements suggest that the Government may be unable to collect billions in royalties from leases issued under this act. Many have probably heard the reports to the effect that in 1998 and 1999 the Clinton administration issued leases that did not include price thresholds. Why is this a big deal? It is a big deal because energy prices have skyrocketed and without price thresholds to trigger payment of royalties, we will not see a dime from these leases. GAO estimates that the mistake could cost up to $10 billion in lost revenues.


Ms. MURKOWSKI. ... Last week, Senator Stevens and I sought to ensure that any revenue sharing proposed in this bill would apply also to Alaska or to any State that allows OCS development off of its shores. We were told at that time that if that provision stays in, it would be a death sentence for this bill.

I have been asked many times in the past few days have I changed my position on this legislation, have I changed my position in support of opening lease sale 181 to exploration and development. I have not. I have not changed that. I remain committed to a sound policy, which I believe this is, that allows for the opening of lease sale 181.

Senate Judiciary Committee "FISA for the 21st Century"
Hearing held on July 26



Member Statement


Republicans losing judge issue
Robert Novak - July 27, 2006

However, Miers maneuvered Livingston to a seat on the New York-based 2nd Circuit. Beyond the White House, Republicans are in disarray on judges. Sen. Lindsey Graham, one of the conservative signers of the June 16 letter, is under fierce attack from the right for opposing Bush's nomination of Pentagon General Counsel William J. Haynes to the 4th Circuit in Richmond, Va., because of his role in handling terrorist detainees. In response, Graham has contended Haynes and two other embattled nominees (whom he supports) are ''wounded'' and asked for new, better-qualified choices.


Mr. SPECTER. ... Additionally, the [ABA] task force has urged the Congress to enact legislation to require the President to submit a report to the Congress of any such signing statement and has urged the Congress to enact legislation. During the course of the hearing before the Judiciary Committee, in my capacity as chairman, I made the request to Bruce Fein, who had been a lawyer in the Department of Justice during the Reagan administration, to take the lead and prepare legislation on the subject. Mr. Fein and my staff have been working on legislation. It is my expectation that, before the weekend, we will submit legislation to the Senate which will give the Congress standing to seek relief in the Federal courts in situations where the President has issued such signing statements and which will authorize the Congress to undertake judicial review of those signing statements, with the view to having the President's acts declared unconstitutional. That is our view as to the appropriate status of these signing statements.


Mr. LEAHY. ... These signing statements are a diabolical device but this President will continue to use and abuse them, if the Republican Congress lets him. So far, this Congress has done exactly that. Whether it is torture, warrantless eavesdropping on American citizens, or the unlawful detention of military prisoners, this Republican-led Congress has been willing to turn a blind eye and rubberstamp the questionable actions of this administration, regardless of the consequences to our Constitution or civil liberties.


Mr. SPECTER. Mr. President, I seek recognition today to introduce [S. 3731] the Presidential Signing Statements Act of 2006. This bill achieves three important goals.

First, it prevents the President from issuing a signing statement that alters the meaning of a statute by instructing Federal and State courts not to rely on Presidential signing statements in interpreting a statute.

Second, it permits the Congress to seek what amounts to a declaratory judgment on the legality of Presidential signing statements that seek to modify--or even to nullify--a duly enacted statute.

Third, it grants Congress the power to intervene in any case in the Supreme Court where the construction or constitutionality of any act of Congress is in question and a presidential signing statement for that act was issued.

Senators Specter and Leahy are following an ABA "Blue Ribbon" report as the basis for their objection to presidential signing statements. The following, by Ed Whelan, are good reading for the counterarguments:

UPDATE @ July 28: Added links to additional comments by Ed Whelan, which include a link to this Washington Post editorial.

ABA Report on Presidential Signing Statements: A Critique (July 24)
ABA Report on Presidential Signing Statements: A Critique (Part II)
ABA Report on Presidential Signing Statements: A Critique (Part III)
Senator Specter's Bill on Presidential Signing Statements
Bruce Fein and Signing Statements
+ The Post Sides With NRO!
+ WaPo to ABA Signing-Statements Task Force: You're Nuts
+ Shut Up, They Explained (July 29)
+ Ted Kennedy Swings and Misses (July 30)
+ Re: Ted Kennedy Swings and Misses (July 30)

And this these by Matthew Franck ...
Random Thoughts on Signing Statements (July 26)
+ Ted Kennedy Swings and Misses (July 30)

And from Marty Lederman, the article ABA Task Force Report on Presidential Signing Statements. Well composed and thorough (as always), but generally advocating the position that there is something amiss about some of President Bush's signing statements.

And on August 6 ...
Larry Tribe on the ABA Signing Statements Report is critical of the ABA and Senator Specter's porposed legislative remedy.

Senate Judiciary Committee Hearing July 27
"Detecting Smuggled Nuclear Weapons"

The testimony makes for interesting reading, and is "must read" for the physics-impaired who also want to understand the limitations of detection. The testimony as a whole contains a good measure of practical insight, and is not partisan in the least.

Senate Committee on Foreign Relations Hearing July 27
To consider the nomination of John Bolton To be U.S. Representative to the United Nations

And so, we're off. The John Bolton hearing is on C-SPAN3.
[direct "mms://" streaming video link]

UPDATE @ 11:00

On the subject of judicial confirmations ...

Sean Rushton - Remember Judges?

... Long delayed nominee Jim Haynes currently described by Senate leaders as "dead" thanks to Republican Senator Lindsey Graham's (S.C.) decision to join Democrats in obstruction is a twofer: He encapsulates not only the debate over the courts, but the fundamental difference between the liberal and conservative visions of the War on Terror. ...

Ninth Circuit nominee William Myers is blocked by California Democrats Dianne Feinstein and Barbara Boxer at the behest of the environmental lobby and its financiers, the trial lawyers. Liberal environmentalists versus a private-property-rights advocate? In the year since the Kelo decision, an entire grassroots property-rights movement has sprung up around this issue. This is another winning debate that the GOP isn't having.

Circuit-court nominee Mike Wallace is a conservative, Harvard-educated lawyer with three decades operating at the highest levels of government and corporate law. But, two members of the American Bar Association's leadership have political vendettas against him dating back to the 1980s. Result? The ABA has rated Wallace "not qualified." The Wallace debate not only puts the Democrats on defense, it will allow conservatives to expose one of their favorite bete noires, the liberal, elitist ABA. Wallace is another obvious, worthwhile fight to push.

Finally, there's the record-setting obstruction of Terrence Boyle to the Fourth Circuit, nominated five years ago and on the Senate floor for more than one year. This journeyman jurist has been attacked from the usual corners, particularly organized labor, and unfairly accused of significant financial improprieties. None of these charges hold water on serious review, and are really proxies for partisan vendettas against Boyle's former boss, Jesse Helms. How to unmask Boyle's opposition? A vigorous debate.

And the response of Senator Frist? To crow about how well the Senate has been doing at confirming judges. I've seen for some time that the interest being protected is Senate collegiality, and this is presented as a balanced, substantive, bipartisan approach to issues - as if balance and bipartisanship represents, of its own right, success, and as if ducking nominations represents substantive advancement.


Senator Sessions digresses to talk about the Mount Soledad monument, and hopes that the Senate will be able to craft legislation - he notes that Senators Boxer and Feinstein are in favor of protecting the cross that is presently standing there.


Senator Frist implements a few procedural steps aimed at keeping the Senate on track to pass S.3711. First, he introduces S.Amdt.4713, and asks for the yeas and nays, then S.Amdt.4714, which is a second degree amendment to S.Amdt.4713, then a cloture motion on the underlying bill.

Senator Frist has "filled the tree" of amendments, cutting off farther ranging amendments that would encroach on a planned undertaking of a Comprehensive Energy Bill - nuclear, biomass (ethanol), consumption, etc.

The cloture vote will occur on Monday, he estimates at 5:30 PM. This signals that the business of the Senate won't diverge much from S.3711 for the balance of the week, what little is left.

Senator Reid again expresses disappointment that the GOP hasn't allowed amendments to this bill. That disappointment is not new, it was raised when S.3711 was brought to the floor, and Senator Reid requested agreement for up to 5 amendments per side. This was objected to by GOP leadership.

UPDATE @ 11:38

Senator Sessions back, again on the subject of the cross on Mount Soledad. He's mocking the reversal rate of the Ninth Circuit Court of Appeals as an aside to the issue, as it's an order of that Court to remove the cross.

Some Democrats in the Senate object to the Senate taking up H.R. 5683 - To preserve the Mt. Soledad Veterans Memorial, and Senator Sessions is trying to flush them out of the woodwork, or acquiesce to a voice vote. House passage was noted here, last week. The other item that came over from the House at the same time was H.R.2389 - The Pledge Protection Act of 2005.

UPDATE @ 13:05

Hat tip to for pointing to the Chicago Tribune editorial, Congress vs. another chimera, which chides the GOP in Congress for bringing up the marriage amendment and legislation that would prevent the courts from hearing cases that aim to strip "Under God" from the Pledge of Allegiance. I agree with the thrust of this editorial.


The Bolton hearing continues with the predictable speeches by those members of the Committee who are opposed to his nomination. The same players, the same objections, the same tired rhetoric, with a fresh overlay relating to Hezbollah/Hamas. They've earned their spot on the soap box via election, but this nominee will be voted out of Committee in the near future.

UPDATE @ 13:48

Hat tip to Mose at, "Kimberly Ann Moore, nominated to be a U.S. Circuit Judge for the Federal Circuit, was voted out of committee on a unanimous voice vote."

UPDATE @ 14:55

Governor Blanco Files Suit Against Federal Government
Political State Report - July 26, 2006

An interesting twist, not related to S.3711, not directly anyway.

See also Blanco's lawsuit aims at helping to restore coast at the Louisiana state government website, and Governor Blanco's statement of July 20, when the state filed the suit.

UPDATE @ 18:25

Talk about a flip flop, Senator Reid wanted the Senate to be able to amend S.3711 - The Gulf of Mexico Energy Security Act, and now he is asserting that he will organize a filibuster and will otherwise work to block the bill if it is altered in conference. The House counterpart is H.R.4761 - Deep Ocean Energy Resources Act of 2006, which was received in the Senate on July 10, and which is radically different from S.3711.

UPDATE @ July 28
Selections from the Record

Voting Rights Act Spat


Mr. LEAHY. Mr. President, I have been advised by Chairman Specter's staff that the chairman is correcting the RECORD regarding some materials that were inserted last Thursday, July 20, 2006, during debate on reauthorization of the Voting Rights Act. I thank the chairman for correcting the RECORD. Contrary to how it appeared in the RECORD, those materials did not reflect work of the bipartisan staff of the Judiciary Committee.

I understand that the chairman filed a committee report last night on S. 2703, the Senate bill reported by the committee last Wednesday. I have yet to see a copy of that final report, nor is it yet publicly available. Indeed, no draft committee report on S. 2703 was circulated to the committee until July 24, 2006, 5 days after the Judiciary Committee unanimously voted to report it and the chairman had reported it, and four days after the Senate unanimously passed H.R. 9, the bill that President Bush signed into law this morning. That draft report did not contain findings based on the extensive record created in both the House and Senate.

In this highly unusual development, as the report filed should indicate, it does not reflect the views of a majority of the Senate Judiciary Committee. This, in spite of the fact that all members voted to report the bill favorably.

Hmmm. The Senate report came out after the Senate concluded consideration of the House's version of the Voting Rights Act, including its passage on a unanimous (98-0) roll-call vote. I take it that the Senate Report is an effort to make a parallel set of tracks to facilitate future posturing by candidates who are up for reelection. Here is a link to S.2703, the Senate counterpart to the Voting Rights Act.

I thought the timing of filing the Senate report (109-295, text not yet available) was odd, appearing in the Congressional Record on July 26, but didn't give it a second thought. Leahy's rant is an interesting splash - I thank the good Senator for stoking my interest enough to look for the report, and read it when it becomes available.


Link to speeches by Senators Sessions and McCain - Mt. Soledad

Note: H.R. 5683 - To preserve the Mt. Soledad Veterans Memorial


Senate Employee Spat

This is a strange looking resolution, allowing of photographs for such a narrow purpose, and not a self-aggrandizing purpose at that. As you will see, curiosity got the better of me.

Mr. LOTT submitted the following resolution, which was considered and agreed to: S. Res. 543

Resolved, That--

(1) paragraph 1 of rule IV of the Rules for the Regulation of the Senate Wing of the United States Capitol and Senate Office Buildings (prohibiting the taking of pictures in the Senate Chamber) shall be temporarily suspended for the purpose of permitting the taking of photographs in the area of the Daily Press Gallery;

(2) photographs permitted under paragraph (1) may only be taken at a time when the Senate is in recess;

(3) photographs permitted to be taken under paragraph (1) may only be used in relation to United States District Court Civil Action No. 04-0026; and

(4) the Sergeant at Arms of the Senate is authorized and directed to make the necessary arrangements for implementation of paragraph (1), which arrangements shall provide that there will be no disruption to the business of the Senate.

United States District Court (of the District of Columbia, before Judge Richard J. Leon) Civil Action No. 04-0026 is "Oscarson v. Office of the Senate Sergeant at Arms." It is a suit by a Senate employee (Wendy Oscarson) against her employer, the Senate. Ms. Oscarson is claiming losses based on the Senate's failure to adhere to the Americans with Disabilities Act (the ADA). She claims to suffer from left carpal tunnel syndrome and cervical disc (neck part of the spinal column) disease.

Wendy Oscarson has worked in the Senate Press Gallery since August, 1983, in capacity as Office Manager, Assistant Superintendent, and Media Relations Coordinator. Her carpal tunnel injury manifested itself in 2001. The civil complaint alleges that office accommodations to her injury/disability were not timely made (the complaint lays out a timeline spanning about one year, from fall of 2001 until early 2003), resulting in aggravation of her injuries.

In April 2004, long after her claim was filed in November 2002, the Office of Workers Compensation Programs found that the work duties and conditions were responsible for her carpal tunnel injuries. She took a medically ordered leave of absence in July 2003, at which time the cervical disc condition was diagnosed.

The complaint paints the Senate offices as rather inept at dealing with a worker claiming injury, to the extent that Ms. Oscarson's doctor dropped her as a patient, citing the burden of "numerous and lengthy forms that the Senate demanded he complete" as the reason. Now that is karma.

Regarding damages, Ms. Oscarson seeks declaratory judgement that the Senate violated the ADA, that reasonable workplace accommodations be made so she can perform the essential functions of her job, compensatory damages in the amount of $300,000 and "front pay" damages in the amount of no less than $100,000, plus attorneys' fees and costs.

Both sides moved for summary judgment on June 13, 2006.


The Amendments to S.3711 that "Filled the Tree"

Clearly a procedural move here, nothing of substance in these ...

SA 4713. Mr. FRIST proposed an amendment to the bill S. 3711 ... At the end insert the following:

The effective date shall be 2 days after the date of enactment.

SA 4714. Mr. FRIST proposed an amendment to amendment SA 4713 ... as follows:

On line 1, strike ``2 days'' and insert ``1 day''.


Another Item of Obstruction

The Democrats appear intent on maintaining obstruction of S.403 - the Child Custody Protection Act, as evidenced by these comments by Senator Frist (link) ...

It is very important we go to conference to put an end to this tragedy which occurs all too often in this country. We tried to go to conference. The Democrats on the other side specifically rejected our proposal to go to conference. We put forth a unanimous consent request which was denied, and that is a real tragedy.

I will not proffer that unanimous consent request again right now, but we will be doing so over the coming days. The Democrats have made it very clear that they are going to obstruct the regular order of business in going to conference. I am very disappointed, and I think it is absolutely wrong.

Wednesday, July 26, 2006

Senate Live - July 26, 2006

The Gulf of Mexico energy security bill

Being voted on this morning is a cloture motion on the motion to proceed to the consideration of the bill. It seems to me that raising an objection to taking up this bill violates the spirit of the UC agreement reached last week ...

Ordered, That if the Majority Leader or his designee introduces a bill related to energy on Thursday, July 20, 2006, it shall be in order to move to proceed to that legislation on Friday, July 21, 2006. (July 19, 2006.)
Sure, Monday isn't Friday, and it's legitimate to criticize Senate leadership for not moving to proceed to S.3711 on Friday, even late in the day, but objecting on Monday seems a cheap shot. Oh well, water over the dam.

The cloture motion on the motion to proceed to consider
S.3711 - The Gulf of Mexico energy security bill was
PASSED on a 86 - 12 vote
One GOP Senators voted NAY: Snowe

I'm happy to see that this bill wasn't killed before it could be taken up for debate.


Interesting yesterday, Senator Durbin's objection to sending S.403 - Child Custody Protection Act to conference. I predict the obstruction will be successful, and that this bill will not be sent to conference during the course of the 109th Congress.


Ratchet up the rhetoric. It isn't often that the word "diabolical" appears in the Congressional Record. Here is an example from July 25:


Mr. LEAHY. ... These signing statements are a diabolical device but this President will continue to use and abuse them, if the Republican Congress lets him. So far, this Congress has done exactly that. Whether it is torture, warrantless eavesdropping on American citizens, or the unlawful detention of military prisoners, this Republican-led Congress has been willing to turn a blind eye and rubberstamp the questionable actions of this administration, regardless of the consequences to our Constitution or civil liberties.

UPDATE @ 15:30

The Senate took a brief detour from discussing the Gulf of Mexico energy security bill, and took up S.3549 - Foreign Investment and National Security Act of 2006 long enough to pass it on a voice vote. This bill, if enacted, changes the statutory requirements for the operation of CFIUS. You may recall CFIUS as an agency that was involved in the rebuffed attempt by Dubai Ports World to take over cargo operations at various US seaports, via purchase of Peninsular and Oriental Steam Navigation Company.

Friday, July 21, 2006

Senate Live - July 21, 2006

Another sleepy Friday in the Senate. Senator Frist announced the following unanimous consent agreement yesterday:

1.--Ordered, That on Friday, July 21, 2006, at 9:30 a.m., the Senate proceed to the consideration of ...

Child Custody Protection Act

A bill to amend title 18, United States Code, to prohibit taking minors across State lines circumvention of laws requiring the involvement of parents in abortions decisions.


Looking past that, another unanimous consent agreement provides that an energy bill be in order, provided it be introduced on July 20. Such a bill was introduced yesterday, so there is a good chance that today we will hear a motion to proceed to it, with the time of taking it up being early next week.

2.--Ordered, That if the Majority Leader or his designee introduces a bill related to energy on Thursday, July 20, 2006, it shall be in order to move to proceed to that legislation on Friday, July 21, 2006. (July 19, 2006.)


The following bill was read the first time:

S. 3711. A bill to enhance the energy independence and security of the United States by providing for exploration, development, and production activities for mineral resources in the Gulf of Mexico, and for other purposes.

I wonder if this opens up leasing, as did "S.2253 - A bill to require the Secretary of the Interior to offer the 181 Area of the Gulf of Mexico for oil and gas leasing."

These items have been on the radar for weeks, with no action being hinted either in the news or from the floor of the Senate ...

  • H.R.4890 - Legislative line item veto;
  • H.R.5638 - Modification to the estate/death tax; and
  • immigration reform (waiting for the vehicle for House/Senate conference and for the naming of conferees)

Here are two further items that have been in the news, have had action in the House, landed in the Senate's lap yesterday -- and noted here to place the possibility of Senate action into view.

ENROLLED BILL SIGNED -- (Senate - July 20, 2006)

At 12:23 p.m., a message from the House of Representatives, delivered by Ms. Niland, one of its reading clerks, announced that the House has passed the following bills, in which it requests the concurrence of the Senate:

H.R. 2389. An act to amend title 28, United States Code, with respect to the jurisdiction of Federal courts over certain cases and controversies involving the Pledge of Allegiance.

H.R. 5683. An act to preserve the Mt. Soledad Veterans Memorial in San Diego, California, by providing for the immediate acquisition of the memorial by the United States.

And it being a sleepy Friday morning, it's a good time to list the items that I see as lurking somewhere in the background, but possible to become the issue du jour on short notice ...

  • jurisdiction and procedure relating to enemy combatant detainees;
  • legislation aimed to get Congress on the same page as the executive regarding surveillance activity;
  • resolution condemning unauthorized disclosure and publication of the NSA terrorist surveillance program, NSA phone call logging "allegation," and clandestine monitoring of financial transactions via SWIFT;
  • legislation aimed to shield reporters from an obligation to disclose sources in (some) civil and criminal actions; and
  • judicial nominations

UPDATE @ 10:01 has many links to "U.S. Loses Bid to Dismiss AT&T Surveillance Suit", where my post yesterday only pointed to ScotusBlog for a report (and a link to the opinion by the Court).


Senator Frist notes that he expects debate on S.403 - Child Custody Protection Act to continue until Tuesday.

He misspeaks that S.Res.534 - A resolution condemning Hezbollah and Hamas and their state sponsors and supporting Israel's exercise of its right to self-defense was passed by unanimous consent. Senator Byrd spoke against the resolution, on the grounds that it was inflammatory to the situation because it pointed a finger of blame, and therefore did not advance the interests of the United States.

He names the following items as being planned for next week:

And slated for before the August recess ...

  • Department of Defense Appropriations - Conference report reconciling H.R.5122 and S.2766.
And at an indefinite time, but stated as "issues we need to move on soon,"

  • Pensions - S.1783 and H.R.2830 have been in conference since early March. Issues include folding estate/death tax reform into this bill; giving airlines special treatment so they don't dump their pension obligations on the taxpayer; and reinstating some of the temporary tax breaks.
  • Port Security
  • Small Business Health Plan. This is the Enzi bill, S.1955, which has been listed as "the pending business" on the Senate's legislative calendar since the cloture vote failed 55 - 43 on May 11

I notice that no other Circuit Court nominees were named, not Haynes, not Boyle, and not Myers. Robert Novak,, and others have noted Senator Frist spinning (here too) the (in)action of the Senate regarding nominations as "success," having a high percentage of the nominations being confirmed, and ignoring those that languish for months (in some cases years) without definitive action.


Slight switch of gears, but a subject that Senator Voinovich has catapulted into the news ...

July 20th, 2006 - WASHINGTON, D.C. -- U.S. Senate Majority Leader Bill Frist, M.D., (R-Tenn.) made the following statement on John Bolton's confirmation to serve as ambassador to the United Nations:

"I encourage swift action on the confirmation of John Bolton and have asked that Chairman Lugar and the Foreign Relations Committee hold hearings as soon as possible to ensure he continues the important work he's started at the UN."


Senator Sessions rises, to be the first to speak on the pending bill after a quorum call of several minutes.

UPDATE @ 10:19

Senator Wyden indicates that he intends to block this bill, unless it contains language relating to "net neutrality." Maybe Senator Wyden will filibuster this bill.

UPDATE @ 11:40

Added links and details in the short list above, at the action item, "Pensions."

The Senate has been in quorum call since Senator Wyden stopped speaking over an hour ago.
Here is Wyden on his proposed requirements for "net neutrality." Wyden is presently blocking Senator Stevens' S.2686 - Communications, Consumer's Choice, and Broadband Deployment Act of 2006, as reported in this article and many other articles. Lots of issues wrapped up in Stevens' bill, and the notion of "net neutrality" itself covers fairly broad ground.

UPDATE @ 12:15

Senator Frist closes down the Senate, with a closing speech that advocates embryonic stem cell research. Before that, he outlined the action for Monday and Tuesday. Seems he was able to dispense with Senator Wyden's possible filibuster of S.403 - Child Custody Protection Act.

The Senate will open Monday at 2:00 PM. There will be an hour of morning business. At 3:00, the Senate will go into executive session for 2 hours of debate on the nomination of Jerome Holmes.

The Senate will have an additional 2 hours of debate on the nomination of Holmes on Tuesday, with the first vote of the week being on Tuesday, the 25th, on the nomination.

Following that, the Senate will resume consideration of S.403, with amendments and debate limited as follows:

  • Feinstein amendment - 2 hours - on an exemption for clergy (I presume, to permit clergy to take minors across state lines for the purpose of obtaining abortions)
  • Democrats - 90 minutes - on an amendment relating to teen pregnancy prevention (free contraception, probably)
  • Boxer amendment - 2 hours - an amendment that refers to cases involving parental incest
  • Ensign amendment - 2 hours - also referring to cases that involve parental incest
  • Vote on the Ensign amendment before voting on Boxer amendment
  • General debate on the bill - 1 hour
  • vote on the bill
Senate stands in adjournment as of 12:13.

UPDATE @ 12:36

Hat tip to Cliff May at NRO Corner ...

Senate Committee on Foreign Relations Hearing July 27
To consider the nomination of John Bolton To be U.S. Representative to the United Nations

Thursday, July 20, 2006

Senate Live - July 20, 2006

Looks to be a ho-hum day, unless you are one of the nominees who will be voted on later. Judicial nominations is still a tender spot for the Senate, with Haynes, Myers and Boyle being subjects of some contention. See, e.g. ...

Jul 14, 2006: Gang of 14 hints at nixing Haynes
Jul 18, 2006: ABA downgrades Boyle rating



H.R. 9 (ORDER NO. 521)

1.--Ordered, That on Thursday, July 20, 2006, at 9:30 a.m., the Senate proceed to the consideration of H.R. 9, an act to amend the Voting Rights Act of 1965; provided that there be 8 hours of debate equally divided between the two Leaders, or their designees, with no amendments in order to the bill; further, that following the use or yielding back of time, the Senate proceed to a vote on passage without any intervening action or debate. (July 19, 2006.)

S. 403 (ORDER NO. 16)

2.--Ordered, That on Thursday, July 20, 2006, at a time to be determined by the Majority Leader upon consultation with the Democratic Leader, the Senate proceed to the consideration of S. 403, a bill to amend title 18, United States Code, to prohibit taking minors across State lines in circumvention of laws requiring the involvement of parents in abortions decisions. (July 18, 2006.)


3.--Ordered, That if the Majority Leader or his designee introduces a bill related to energy on Thursday, July 20, 2006, it shall be in order to move to proceed to that legislation on Friday, July 21, 2006. (July 19, 2006.)


Mr. McCONNELL. Mr. President, tomorrow, the Senate will consider the Voting Rights Act under a limited time agreement. There are 8 hours of debate, but we hope to yield back some of the time and vote in the afternoon tomorrow. We will also have votes on several circuit court and district court nominees, the Adam Walsh Child Protection and Safety Act [H.R. 4472], and under an agreement reached earlier this week, we will proceed to the consideration of S. 403, the Child Custody Protection Act. So Senators should plan for a full day tomorrow with a number of votes throughout the day.

Renewal of the Voting Rights Act is a foregone conclusion, but the debate may have some interesting points.

Senate leader expects Voting Rights Act renewal passage
Joshua Pantesco - July 14, 2006

[JURIST] Senate Majority Leader Bill Frist (R-TN) told reporters Friday that he anticipates easy passage of a bill renewing expiring sections of the 1965 Voting Rights Act (VRA) when it comes before the full Senate. Frist said the Senate will vote on the bill either by the end of June (sic) or after the month-long August break.


The contents of the Energy Bill may be moderately interesting. The U.S. Senate Committee on Energy and Natural Resources has a number of items on its plate, but my guess is the "mystery energy bill" relates to Lease Area 181. This proposed bill (PDF) has been in the news, but was introduced on February 7 as S. 2253.

UPDATE @ 10:48

No action, just some references that are relevant to the "debate" underway. I put scare quotes around "debate" because there won't be any meaningful debate, but only claims of how successful this legislation is.

One point that is of particular interest to me is the requirement to provide multi-lingual ballots and voting assistance. That requirement is being extended.

H.R. 9


Section 203(b)(1) of the Voting Rights Act of 1965 (42 U.S.C. 1973aa-1a(b)(1)) is amended by striking `2007' and inserting `2032'.


This is interesting, in light of the dueling Inhofe/Salazar amendments that were debated under the immigration reform bill. The conclusion of "Language of the Country: Inhofe vs. Salazar" is reinforced by action.

Statement of
Bradley J. Schlozman

Acting Assistant Attorney General
Civil Rights Division
United States Department of Justice

November 8, 2005

It is my privilege this morning to provide you with an overview of the Justice Department's enforcement of the language minority sections of the Voting Rights Act. As you know, these provisions, like Section 5, are due to expire in August 2007.

The minority language provisions of the Voting Rights Act, which have been in effect since 1975, are found in Sections 203 and 4(f)(4) of the Act. These provisions mandate that any covered jurisdiction which "provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots" must provide such materials and information "in the language of the applicable minority group as well as in the English language." ...

Indeed, since 2001, this Administration has filed more minority language cases under Sections 4 and 203 than in the entire previous 26 years in which these provisions have been applicable. Each and every case has been successfully resolved with comprehensive relief for affected voters. And the pace is accelerating, with more cases filed and resolved in 2005 than in any previous year, breaking the previous record set in 2004. The lawsuits filed in 2004 alone provided comprehensive minority language programs to more citizens than all previous Section 203 and 4(f)(4) suits combined.

Osceola, FL, Consent Decree
San Benito Complaint

As more people come to this country, and don't demonstrate proficiency in English, the greater the number of voting districts that will come in the scope of Section 203(b)(1) of the Voting Rights Act of 1965. I conclude that there is no enforcement of an expectation to assimilate, or perhaps there isn't even that expectation.

UPDATE @ 16:23

A timely piece of news from ScotusBlog ... Judge rebuffs government on NSA spying. This is a lower court (Federal District Court) opinion relating to the NSA terrorist surveillance program, and the judge refused to dismiss the case at this stage of the proceeding.

UPDATE @ 16:28

The Senate is starting a roll call vote on the Voting Rights Bill.

UPDATE @ 17:06

H.R. 9 - To amend the Voting Rights Act of 1965 was
PASSED on a 98 - 00 vote.

UPDATE @ 17:11

Senator Frist outlines business for the rest of the week. No more roll call votes this week.

For today, the Adam Walsh Child Safety and Protection Act will be debated for 2 hours, then passed by a voice vote. This creates a national sexual offender registry.

Also today, 2 Circuit Court judges and 2 District Court judges will be confirmed by a voice vote. Senator Frist did not name names.

The Child Custody Protection Act will be taken up tomorrow.

UPDATE @ 19:37

H.R. 4472 - the Adam Walsh Child Protection and Safety Act was
PASSED on a voice vote.

Circuit Court nominees Gorsuch and Shepherd have been confirmed en bloc on a voice vote.

Monday, July 17, 2006

Senate Live - July 17, 2006

UPDATE July 18 @ 16:57

Fetus Farming Prohibition Act of 2006
PASSED on a 100 - 00 vote.

Alternative Pluripotent Stem Cell Therapies Enhancement Act
PASSED on a 100 - 00 vote.

Stem Cell Research Enhancement Act of 2005
PASSED on a 63 - 37 vote.
GOP AYE votes: Alexander, Bennett, Burr, Chafee, Cochran, Collins, Frist, Gregg, Hatch, Hutchison, Lott, Lugar, McCain, Murkowski, Smith, Snowe, Specter, Stevens and Warner

I think the proponents of this make a grave moral error. I understand the rationalization, as in "dead anyway, may as well use it." I doubt I could phrase a counter argument that would change hearts or minds. The opponents tend to point to sucess in adult stem cell research as justification to avoid embryonic stem cell research (ESCR). My objection to ESCR isn't based on a comparison. I hold that ESCR is morally wrong.

But politically speaking, this issue is now off the Senate's plate.

Today and most of tomorrow will be the 12 hours of debate on the stem cell research package. The time for debate has been allocated, and the agreement recites "that no amendments be in order to any of the measures."

Mr. FRIST. ... I ask unanimous consent that at 12:30 p.m. on Monday, July 17, the Senate proceed to the consideration of S. 3504, S. 2754, and H.R. 810, as under the previous order. I further ask that the time be divided as follows:

Monday: 12:30 to 1:00, majority; 1:00 to 1:30, minority; 1:30 to 2:00, majority; and 2:00 to 2:30, minority, continuing to rotate every half-hour until 8:30.

Tuesday: 10:00 to 10:30, majority; 10:30 to 11:00, minority; 11:00 to 11:30, majority; 11:30 to 12:00, minority; 12:00 to 12:15, majority; 12:15 to 12:30, minority; 2:15 to 2:45, majority; 2:45 to 3:15 minority; 3:15 to 3:30, minority leader; and 3:30 to 3:45, majority leader.

Further, I ask that at 3:45 the Senate proceed to three consecutive votes as the order provides. [S. 3504, S. 2754, and H.R. 810]

The agreement also sets up a supermajority requirement, 60 votes, to pass any of the bills, and that no Senator will submit another amendment or bill on the subject of stem cell research at any future time in the 109th Congress.

S.3504 should pass easily, the more contentious debate and vote will be between S.2754 and H.R.810. Summaries of the three bills as provided by Congressional Research Service ...

Fetus Farming Prohibition Act of 2006

A bill to amend the Public Health Service Act to prohibit the solicitation or acceptance of tissue from fetuses gestated for research purposes, and for other purposes.

Amends the Public Health Service Act to prohibit any person or entity involved in interstate commerce from: (1) soliciting or knowingly acquiring, receiving, or accepting a donation of human fetal tissue knowing that a human pregnancy was deliberately initiated to provide such tissue; or (2) knowingly acquiring, receiving, or accepting tissue or cells obtained from a human embryo or fetus that was gestated in the uterus of a nonhuman animal. Imposes fines and/or imprisonment for violations of this Act.


Alternative Pluripotent Stem Cell Therapies Enhancement Act

A bill to derive human pluripotent stem cell lines using techniques that do not knowingly harm embryos.

Amends the Public Health Service Act to require the Secretary of Health and Human Services to develop techniques for the isolation, derivation, production, or testing of stem cells that are capable of producing all or almost all of the cell types of the developing body and may result in improved understanding of treatments for diseases and other adverse health conditions, but are not derived from a human embryo.

Requires the Secretary to: (1) provide guidance concerning the next steps required for additional research; (2) prioritize research with the greatest potential for near-term clinical benefit; and (3) take into account techniques outlined by the President's Council on Bioethics and any other appropriate techniques and research.


Stem Cell Research Enhancement Act of 2005

To amend the Public Health Service Act to provide for human embryonic stem cell research.

Amends the Public Health Service Act to require the Secretary of Health and Human Services to conduct and support research that utilizes human embryonic stem cells, regardless of the date on which the stem cells were derived from a human embryo, provided such embryos: (1) have been donated from in vitro fertilization clinics; (2) were created for the purposes of fertility treatment; (3) were in excess of the needs of the individuals seeking such treatment and would never be implanted in a woman and would otherwise be discarded (as determined in consultation with the individuals seeking fertility treatment); and (4) were donated by such individuals with written informed consent and without any financial or other inducements.

House Debate of May 24, 2005

The entertainment in this debate will be to predict which Senators will vote for Santorum/Specter S.2754, which will vote for H.R.810, and whether any Senator will vote in favor of both. Senators Burr, Collins and Inhofe are also co-sponsors on S.2754.

It is a common but false belief that Senator Frist recently "changed" his position with regard to embryonic stem cell research.

December 3, 2001 - MORATORIUM ON CLONING

Mr. FRIST. I strongly support embryonic stem cell research. As both a supporter and a scientist, I can tell you that this field remains in its earliest stages of basic research. At a hearing on stem cell research this fall, Secretary Thompson noted that clinical applications are years away. It is simply not the case that a ban on human cloning, particularly the temporary moratorium we are discussing today, would in any way harm the progress of stem cell research.


April 9, 2002 - HUMAN CLONING

Mr. FRIST. At this point in the evolution of this new science, I believe there is no justification for the purposeful creation and destruction of human embryos in order to experiment with them, especially when the promise and success of stem cell research does not--does not--depend on the experimental research cloning technique. As my colleagues know, I am a strong supporter of stem cell--including embryonic stem cells--research, as long as that stem cell research is conducted within an ethical and moral framework.

UPDATE @ 18:15

Being Arlen Specter by Matthew J. Franck is a really good read, focused on Senator Specter's persistent "punting" of issues to the court, in this case the NSA/FISA issue. Mr. Franck links to an excellent essay, which I strongly recommend.

The Supreme Court v. the Constitution of the United States of America
Michael M. Uhlmann

The proposition that the federal judiciary is the fons et origo of constitutional meaning has in our time acquired the status of a religious conviction that only fools, cranks, or the impious would contest. The dogma of judicial supremacy draws added strength from two related beliefs, namely, that a written Constitution implies no less and that its roots can be traced to the American founding era. Did not the Great Chief Justice declare as much in his celebrated opinion in Marbury v. Madison (1803)?

The answer is that John Marshall did no such thing, notwithstanding that Marbury is commonly cited in support of the proposition. Judicial supremacy is in fact a thoroughly modern development that scarcely antedates the late 20th century. It was invented, not surprisingly, by the Supreme Court itself and asserted for the first time in Cooper v. Aaron, the 1958 Little Rock schools case. ...

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.