Thursday, February 15, 2007

Review of Week of February 12, 2007

    An uneventful week - one might infer that from the fact that this post doesn't appear until Thursday, the 15th.

    H.R.20 - The Continuing Resolution was subjected to a cloture motion, which passed on a 71-26 vote, then after 30 hours, the Continuing Resolution passed on a 81-15 vote.

    A number of smaller issues surfaced in debates, none of which really captured my attention. Military base alignment and closure, a bit about Iraq (of course), AIDS, mine safety, education, the environment, international trade, health care, tax policy, etc. The general complaint, by the Republican Senators, was that the bill had no room for amendment. Hey, the GOP could have handled the appropriations bills in the 109th Congress, and made a conscious and deliberate decision to NOT do so. Take up the "no amendments" complaint with ex-Senator Frist.


    As I type this at 10:45 AM, the Senate is voting on Executive Calendar Nos. 24 and 26, Norman Randy Smith to be confirmed for a seat on the 9th Circuit Court of Appeals after being nominated four (4) times, and Marcia Howard to be District Court Judge for the Middle District of Florida.

N. Randy Smith was CONFIRMED to the 9th Circuit Court of Appeals on a 94 - 0 vote.


    For what it's worth, S.470 - A bill to express the sense of Congress on Iraq, which the Senate did not even take up, technically has the possibility of reconsideration of the cloture vote on the motion to proceed to consideration. Senator Reid entered a Motion to reconsider on February 5th, when on Roll Call Vote No, 44, the cloture motion failed to obtain the required 60 votes for passage.

    The Senate will later proceed to legislative business of some sort, but it being Thursday afternoon, a safe bet is not much will happen in the floor of the Senate, except the usual Iraq-surge speeches and debate.

    Senator Reid appears to be preparing to push S. 574, to express the sense of Congress on Iraq, it having been read a second time and now having Order No. 25 on the legislative calendar.

UPDATE @ 11:45

    Senator Reid requests unanimous consent to proceed to H.Con.Res.63 - Iraq War Policy resolution, with 12 hours of debate. Senator McConnell objects, due to inability to amend (same issue as last week), to which Senator Reid says the consent agreement permits amendments, e.g. by Warner, McCain, Levin, and/or others.

    Senator McConnell proposes a unanimous consent agreement to proceed to several measures:

  • An underlying House Concurrent Resolution (H.Con.Res.63, I think)
  • S.Con.Res.7 - Warner's concurrent resolution expressing the sense of Congress on Iraq
  • McCain-Lieberman-Graham amendment (Benchmarks and support of surge)
  • Gregg amendment (Funding)
Followed by 12 hours of debate, no further amendment, four consecutive votes (Gregg, Warner, House Resolution, McCain-Lieberman-Graham), with 60 votes required to pass any one of the points.

    Senator Reid tries to draw it back to a vote as to whether or not there will be a surge in Iraq, and no more. Reid objects to McConnell's unanimous consent request.

    Senator McCain wants to know why the Senate can't vote on competing resolutions. He is unhappy with Reid's objection to taking up an pro-surge resolution. But the complaint can be taken the other way, as being against McConnell's objection to taking up an anti-surge resolution.

    Senator McConnell offers to continue to negotiate this with Reid, I predict continuing argument about which side is blocking taking up a resolution, without the Senate ever taking up a resolution or bill on the subject.

    Reid proposes the Senate take up two resolutions, one pro-surge, one anti-surge. McConnell objects, on the grounds that Reid and the Democrats should not be choosing the GOP amendments. McConnell again reiterates the same four-point offer above, to which Reid propounds a counter-offer to permit further amendment. No agreement.

    Senator Durbin says this is a redo of last week's debate, where the Republicans voted against the cloture motion on the motion to proceed to consideration - if the Republicans don't want to debate this, why are they asking to debate this?


    Senators Specter and Byrd have a brief, but interesting exchange relating to the power of the majority leader to "fill the amendment tree." Byrd asserts that the majority leader loses the floor after making a motion to amend, and that an objecting Senator can stifle "filling the tree" by claiming the floor before the majority leader is able to offer a next amendment.

    Heh. Specter thinks this (filling the tree) is dysfunctional, yet not much complaint about the constitutional dysfunction represented by the Senate-erected 60 vote hurdle to confirm an executive nomination. Byrd again asserts that no rule change is required, all that is required is for the Senate to enforce its existing rules. What Byrd proposes would represent a MAJOR takeaway of power from the Senate majority leader.

    Senator Specter was unable to speak on the several subjects he intended to, and asks to have the material entered in the record.


    Senator Leahy will speak about one hour on the subject of Iraq.

UPDATE @ 14:20

    Senator Alexander notes that the Senate has a February recess. Oh yeah. All the more reason to bail out early. Next week is a holiday week, all week.

    At any rate, he is talking about "Real I.D.," or federalizing identification requirements for all the subjects of the land. He notes that the state of Maine has urged Congress to repeal the Real ID Act before it becomes law; many states have lodged requests, but Maine has voted legislation. Alexander notes that the state balks may be tied to the cost of meeting the ID technical requirements -- here's to more taxes so we can be forced to obtain (and always carry) compliant ID!

    Senator Alexander notes that Senator Collins will offer an amendment to the "Implement 9/11 Commission Recommendations" bill, to water down the requirements of the Real ID Act.


    Senator Byrd - on the subject of Senator Kennedy's 72nd birthday. "Oh, to be 72 again," says Byrd.

UPDATE @ 15:19

    A request to take up Senator Feinstein's S.214 - Preserving United States Attorney Independence Act of 2007, was blocked by objection from Senator Kyl. (Hat tip -

    The list of measures introduced by Senator Feinstein is interesting in its own right, check it out.


    Those readers with an interest in detainee cases will want to read Lyle Denniston's Government opposes quick relief for detainee, which outlines the case of a Saifullah Paracha, who was taken from Thailand, and is now held in Gitmo as an "enemy combatant.".

    Mr. Paracha has a series of appeals pending before the US Supreme Court. These cases, generally flying under the radar (because the rulings below are unpublished), are touted as possibly precipitating an historic ruling by the Supreme Court. Mentioned here, because the Paracha cases implicate the recently-passed Military Commissions Act. Mr. Paracha challenges being designated as an "enemy combatant."

    A reader comment to Denniston's post cites another case, In re Blodgett, 502 U.S. 236, that is also worth a quick review. Blodgett indicates that the Supreme Court is unlikely to push the DC Circuit Court for a quick decision on Paracha's claim and legal arguments.

UPDATE @ Feb 16

    Reid's Saturday vote stunt is humorous, in a way. Conducting the vote on Saturday creates slightly more news attention, as if that will affect the outcome.

    The vote is on a cloture motion on a motion to proceed to consideration (is this starting to sound familiar?) of a measure the House is expected to pass today, H.Con.Res.63 - An Iraq-surge Disapproval Resolution.

    CORRECTION, the cloture vote scheduled for Saturday is on a motion to proceed to the consideration of S.574 - A bill to express the sense of Congress on Iraq. Senator Reid allows that the vote will be taken from 1:45 to 2:20 PM or so, to permit Senators to appear and leave, as they wish, in that time frame.

    These Iraq-surge resolutions are proliferating, what now, the Senate has its S.574, and ... oh heck, maybe this is a good place to provide an updated summary list, which doesn't even attempt to probe the full range of House-initiated measures:

  • Biden's S.Con.Res.2
  • McCain's S.Res.70 (aka Lieberman/McCain: benchmarks)
  • Levin's S.470 (progenitor of S.574)
  • Warner's S.Con.Res.7
  • The Gregg Amendment (must be filed under a different name - the text of this "amendment" or "resolution" is not yet in the Congressional Record, and it isn't clear where it fits or applies)
  • S.574 - A bill to express the sense of Congress on Iraq
  • H.Con.Res.63 - An Iraq-surge disapproval Resolution.

    Of that list, H.Con.Res.63 is the current subject of debate, in both Houses of Congress, and any of the other proposals is "able" (technically) to be offered as an amendment or substitute. This ability to amend is what all the unanimous consent wrangling has been over - and the wrangling is typical of politics, to be able to craft certain expressions while avoiding consideration of certain alternatives.

UPDATE @ 10:34

    See correction above, regarding the measure that is the subject of a cloture vote this Saturday. It's not H.Con.Res.63, it'll be S.574.

    A White House release from Wednesday. For some reason, I thought the military commissions had been established earlier, but apparently not.

Executive Order - "There are hereby established military commissions"

    On a totally separate subject, the February 15 President's Statement on Fiscal Year 2007 Appropriations is a concise compliment and goad from President Bush to Congress, on the general subject of financial priorities and federal government spending level.


    A few items from yesterday's Congressional Record:

Debate on Unanimous Consent Requests Feb 15, 2007.
This is where Senators Reid, McConnell, McCain, Roberts, and Durbin went back and forth on debating and handling the various Iraq-surge measures, with the conclusion being there was (still) no agreement as to how to proceed.

Senator Leahy on the replacement of U.S. Attorneys, where he aligns himself with Senator Feinstein in objecting to the replacement of U.S. Attorneys by the Department of Justice, where the replacement avoids Senate confirmation.

Senator Alexander against the "Real ID" Card.

UPDATE @ 15:22

    The House just passed H.Con.Res.63 - An Iraq-surge disapproval Resolution (246-182). The motion to reconsider the vote was tabled. The House moves on to the Concurrent Resolution for the February Congressional recess, H.Con.Res.67.

UPDATE @ 16:27

    The Senate is, at 16:27, apprised by messenger of the House (Ms. Niland) passage of H.Con.Res.63 and H.Con.Res.67.

    The White House had a formal response before that time.

For Immediate Release
Office of the Press Secretary
February 16, 2007

Statement on Non-Binding House Resolution on Iraq

The House of Representatives has passed a resolution expressing disapproval of President Bush's plan to send reinforcements to Iraq. This plan enjoys the support of the Iraqi government and U.S. military leadership, including Gen. David Petraeus, Commander of the Multi-National Force in Iraq, who recently was confirmed to his post by an 81-0 vote in the Senate.

The President ordered a new way forward in Iraq because he, like most Americans, believed the existing situation in Iraq was unacceptable. The President concluded that this new strategy was necessary in order to help the Iraqi government gain control over Baghdad, assume more responsibility for security, and pursue reconciliation of all of Iraq's communities.

The resolution is nonbinding. Soon, Congress will have the opportunity to show its support for the troops in Iraq by funding the supplemental appropriations request the President has submitted, and which our men and women in combat are counting on.

The President believes that the Congress should provide the full funding and flexibility our Armed Forces need to succeed in their mission to protect our country.

UPDATE @ 16:48

    Another detainee case, Al Sanani v. Bush, making its way up the ladder. ScotusBlog had this post yesterday, and today, notes ...

Chief Justice John G. Roberts, Jr., on Friday told the Justice Department he wants a response by 2 p.m. next Tuesday to a plea by a Guantanamo Bay detainee for an order to force the government to provide reasons why he is a prisoner. The call came in the case of Al Sanani v. Bush (application 06A797)

UPDATE @ Saturday Feb 17

    The House stands adjourned until 4 p.m. on Tuesday, February 20, 2007.

    The Senate is to open for business at noon today, and is scheduled to conduct a cloture vote on the motion to proceed to the consideration of S.574 at 1:45 p.m. Time from noon to 1:45 is equally divided, with the last 20 minutes being divided 10 minutes for McConnell then 10 minutes for Reid. Senator Reid said that he expects the vote to be concluded by 2:20 p.m.

    Add another Senate bill to the "Iraq resolutions" list ...

S.641 - to express the sense of Congress that no funds should be cut off or reduced for American troops in the field which would result in undermining their safety or their ability to complete their assigned missions. This one was placed on the legislative calendar yesterday.

Mr. LIEBERMAN. Mr. President, when the roll is called tomorrow on the motion for cloture with regard to the resolution the House is expected to pass tonight on Iraq, I will vote no. I will vote against cloture. I will do so not because I wish to stifle debate. The fact is that debate has occurred, it is occurring now, and it will continue to occur on our policy in Iraq.

I will vote against cloture because I feel so strongly against the resolution. It condemns the new plan for success in Iraq. I support that plan. ...

Congress has been given constitutional responsibilities, but the micromanagement of wars is not one of them.

    It's interesting that even seasoned Senators are erring as to what exactly they will be voting on this afternoon. The cloture motion is clear, the question is on limiting debate on a motion to proceed to the consideration of S.574. The vote is NOT on a motion to proceed to the consideration of "the resolution the House is expected to pass," H.Con.Res.63.

    To be fair, S.574 and H.Con.Res.63 are nearly identical, and the debate is focused entirely on common elements (1) and (2) ...


It is the sense of Congress that--

(1) Congress and the American people will continue to support and protect the members of the United States Armed Forces who are serving or who have served bravely and honorably in Iraq; and

(2) Congress disapproves of the decision of President George W. Bush announced on January 10, 2007, to deploy more than 20,000 additional United States combat troops to Iraq.

. . . [snip executive reporting requirement]



Resolved by the House of Representatives (the Senate concurring), That--

(1) Congress and the American people will continue to support and protect the members of the United States Armed Forces who are serving or who have served bravely and honorably in Iraq; and

(2) Congress disapproves of the decision of President George W. Bush announced on January 10, 2007, to deploy more than 20,000 additional United States combat troops to Iraq. [end]

    If the Senate were to proceed to S.574 and eventually pass it, a House-Senate conference would be required to reconcile the material differences between the two measures (S.574 and H.Con.Res.63), then additional votes in each house of Congress on whatever emerged from conference committee, with those votes also being subject to the possibility of politically-motivated stalling.

    The debate preceding today's vote will air the same arguments as last week and this week - i.e., blame each other for failing to formally take up and debate an Iraq resolution. "Out with a whimper." Or not. Iraq policy isn't going to fade as an issue, it has taken on the quality of pivot-point for purposes of differentiating politicians and political parties.

Recent history of Senate votes on Iraq resolutions

    Cloture Motion on Motion to proceed to consideration of:

    I predict today's cloture motion will be rejected 54-40. There will be a few GOP Senators voting in favor of cloture: Snowe, I think, for one; Hagel for another. McCain is openly away on the campaign trail, and will be one of at least five not voting.

    Even if the Democrats don't obtain 54 votes, having a majority of Senators in favor of proceeding to the measure (51 or more - but fewer the 60 required to invoke cloture) will be touted as support for the underlying measure. My sense is that Reid would not have called for a Saturday vote if he did not have at least 51 votes. So for the next week, the Democrats will blame the Republicans for not permitting the majority to express its sense about the President's planned surge. The finger-pointing will continue, but now with fresh ammunition.

UPDATE @ 13:57

    The vote is underway. I have the vote at 48-26, with Collins, Snowe, Specter and Warner casting AYE votes, and Lieberman as a Nay.

UPDATE @ 14:10

    I hadn't figured on Smith and Specter voting Aye, so my prediction of 54 Aye votes turns out to be a little light. The motion will still fail. My current, unofficial tally is at 55-33.

UPDATE @ 14:17

The cloture Motion on the Motion to Proceed to the Consideration of S.574 - A bill to express the sense of Congress on Iraq, was REJECTED on a 56 - 34 vote
GOP Aye Votes: Coleman, Collins, Hagel, Smith, Snowe, Specter, and Warner
DEM Nay Vote: Lieberman
Non-votes: Bennett, Bond, Cochran, Corker, Ensign, Hatch, Johnson, Kyl, McCain & Murkowski

    Let the blame game begin. Notice my prediction, that "majority of Senate" will be a point of argument. Senator Reid wastes no time whatsoever in that regard.

    Now a roll call vote on the Adjournment Resolution, H.Con.Res.67. What a putz, whoever called for that to be a roll call. Not surprisingly, it passed. A bit goofy, not unanimous, passing on a 47-33 vote. Seems a few Senators got a head start out of town.

UPDATE @ 15:30

    Senator Reid sought unanimous consent to take up S.184 - Surface Transportation and Rail Security Act of 2007 at 11:30 a.m. Tuesday, February 27th. Senator McConnell objected, insisting that the Senate proceed to the Homeland Security Bill, as previously agreed. Senator Reid agreed that it was preferable to take up the Homeland Security Bill, but in light of the possibility that it won't be available, he filed a cloture motion on the motion to proceed to take up S.184.

    After some light housekeeping, Senator Reid adjourned the Senate for the week.

    The Senate is to resume at 2:00 p.m. on Monday Feb 26. Meanwhile, I'll continue to note events that catch my eye, using the (probably overlooked) bottom of this post.

UPDATE @ Feb 20

    The Circuit Court of Appeals for the DC Circuit has handed down a victory for the Military Commissions Act, in a 2-1 decision handed down today.

Boumediene v. Bush 05-5062 (consolidated with numerous other cases).

    The decision will certainly be appealed. If you have any interest in the Military Commissions Act, the opinion is a must read.

UPDATE @ Feb 21

    Regarding the Paracha detainee case noted above (under the Feb 15 @ 15:19 Update), the Supreme Court denied certiorari, leaving the case in the hands of the D.C. Circuit Court to handle in its due course. Yesterday was further busy and eventful on the detainee front, and this post at ScotusBlog links to additional news and provides important details. Don't be a chump for the media's take on events, check out the facts for yourself.


Judge rejects delay of phone wiretap suits

A federal judge rejected the Bush administration's request Tuesday to put wiretapping lawsuits against telephone companies on hold while the government asks an appeals court to dismiss the suits on national security grounds.

The ruling came from Chief U.S. District Judge Vaughn Walker of San Francisco, who is hearing more than 40 suits from around the nation accusing telecommunications companies of illegally collaborating with the government's electronic surveillance program.


    For some reason, this case captured my attention months ago. "War is hell," perhaps, but I bet Hell is actually worse.

Second US soldier pleads guilty in Mahmudiya rape-murder case


    In spite of the "domestic" adjective in the title, the article "Federal judge lets discovery proceed in domestic spying class action lawsuit" is about the same collection of NSA terrorist surveillance cases before Judge Walker, that is noted above. This link, however, includes further links to rulings and additional news articles.


    From ScotusBlog, Lawyers say Court is not closed to detainees discusses (and links to) a filing today in the Sharaf Al Sanani detainee case.

The Circuit Court majority, the reply brief said, found that the record in the detainee cases so far "does not have sufficient information to perform the review that DTA allows." Whether detainees are seeking to test their captivity either under DTA or by habeas, the brief argued, a factual record must be developed, and that is all Al Sanani is seeking at this point.

UPDATE @ Feb 22

Senate illegals bill near complete
By Charles Hurt

Senators and lobbyists are putting the final touches on a comprehensive immigration-reform bill that includes an easier citizenship path for illegal aliens and weaker enforcement provisions than were in the highly criticized legislation that the Senate approved last year. ...

Mr. Kennedy drafted this year's bill with help from Sen. John McCain, Arizona Republican, and outside lobbyists.

UPDATE @ Feb 23

US soldier sentenced to 100 years for Mahmudiya rape-murder

... will be eligible for parole after 10 years.


    The jury is still out on the Libby case. My short essay on framing the charges drew quite a few replies on account of being featured on Tom Maguire's popular "Just One Minute" blog.


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