Thursday, June 28, 2007

S.1639 - Comprehensive Immigration Reform

S. 1639. A bill to provide for comprehensive immigration reform and for other purposes.

Links to Congressional Record for S.1348 provided here too, to facilitate any comprehensive review of the comprehensive immigration reform effort. See for my comments relating to action under S.1348, May 21, 2007 - Immigration, Gonzales, and Supplemental (May 21-31), and Immigration Redux, continued - S.Amdt.1150 ... (June 4-15).

I composed some explanations of the parliamentary process - while it's been an strange trip, the upshot is that this is merely another example of objecting to amendments and use of cloture to shut off public debate in legislative chambers.

June 19: On filling the amendment tree with a "clay pigeon" (divisible) amendment
June 23: Clay Pigeon 101
June 26: The clay pigeon is stalled
June 28: The real stinker is the cloture motion

Rather than filling the tree, Senator Reid offered only the Kennedy, Specter S.Amdt.1934 as a first degree amendment, and did not "fill the tree" with a do-nothing second degree amendment. Filling the tree up front wasn't necessary to tie up the parliamentary works for the planned duration of debate, the tree was filled as needed, as each division of the clay pigeon became pending, for example Kennedy's S.Amdt.1978.

My June 28 review of the June 26 and 27 Record - how the "clay pigeon" unfolded in fact. The short version is that a cloture motion on the bill was filed before any amendment was offered. And as I predicted, people are so awed by the divisible amendment that they just plain forgot the better object of anger is the instant filing of a cloture motion.

Text of S.Amdt.1150 to S.1348
S.1348 Summary of Action

May 21, 2007: S.Amdts. 1146 - 1150
S.Amdt.1150 (printed in May 24 Record)
May 22, 2007: S.Amdts. 1151 - 1165
May 23, 2007: S.Amdts. 1166 - 1189
May 24, 2007: S.Amdts. 1190 - 1254
May 25, 2007: S.Amdt. 1255
June 4, 2007: S.Amdts. 1257 - 1281
June 5, 2007: S.Amdts. 1282 - 1333
June 6, 2007: S.Amdts. 1334 - 1475
June 7, 2007: S.Amdts. 1476 - 1499

Text of S.1639 (pdf with page numbering)
S. 1639 Summary of Action

June 19, 2007: S.Amdt. 1701
June 20, 2007: S.Amdts. 1805 - 1816
June 21, 2007: S.Amdts. 1844-55, 1862-66
June 22, 2007: S.Amdts. 1868 - 1870
June 25, 2007: S.Amdts. 1871 - 1902
June 26, 2007: S.Amdts. 1903 - 1946
June 27, 2007: S.Amdts. 1948 - 1978
June 28, 2007: S.Amdts. 1979 - 1999

Debate of May 21, 2007: Part I - Part II - Part III
Debate of May 22, 2007: Part I - Part II
Debate of May 23, 2007: Part I - Part II - Part III
Debate of May 24, 2007: Part I - Part II - Part III
Debate of May 25, 2007: Part I
Debate of June 4, 2007: Part I - Part II - Part III
Debate of June 6, 2007: Part I - Part II - Part III - Part IV
Debate of June 7, 2007: Part I - Part II (S.1348 taken off floor)
Debate of June 11, 2007: Parts I & II
Debate of June 15, 2007: Part I (Reid/SCHEDULE) - Part II (Dorgan)

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Debate of June 18, 2007: Part I (Reid) - Part II (S.1639)
[no debate on June 19 - just parliamentary procedure to get S.1639 on the calendar]
Debate of June 20, 2007: S.1639 Cloture Motion on Motion to Proceed
Debate of June 21, 2007: UC to conduct "to proceed" vote on June 26
Debate of June 22, 2007: Part I (Sessions)
Debate of June 25, 2007: Part I - Part II (Sessions)
Debate of June 26, 2007: Part I (Motion to proceed) - Part II (Clay pigeon move)
Debate of June 27, 2007: Part I - Part II - Part III - Part IV (Sessions) - Part V - Part VI
Debate of June 28, 2007: Part I - Part II (Sessions/Hutchison) - Part III (Kennedy/Cornyn) - Part IV - Part V (McConnell) - Part VI (Durbin) - Part VI (Salazar/Nelson)
Debate of June 29, 2007: Parts I & II (Schumer/Webb)

On Tuesday, June 26, the cloture motion on the motion to proceed to S.1639, comprehensive immigration reform, was
PASSED on a 64 - 35 vote.
GOP AYE Votes: Bennett, Bond, Brownback, Burr, Coleman, Collins, Craig, Domenici, Ensign, Graham, Gregg, Hagel, Kyl, Lott, Lugar, Martinez, McCain, McConnell, Murkowski, Snowe, Specter, Stevens, Voinovich, and Warner

A prediction On Thursday, June 28, the first cloture motion to limit debate on S.1639, comprehensive immigration reform, will be
REJECTED on a 55 - 35 vote.

There's nothing to say they can't continue debate, and have second, third, fourth, fifth and further cloture motions. As a matter of procedure, rejection of cloture doesn't stop debate. But watch what happens, "We couldn't agree to limit debate by passing cloture, so we won't debate any more."

Senator Specter says the pending bill is the best compromise that can be obtained - he is defending working in secret, and he is upset that objectors want to amend the work of the grand bargainers. Senator Specter says that if the bill doesn't pass, the people here illegally will stay here - he just admits that there will be no enforcement of immigration law.

Specter says, "Those who vote against cloture will be responsible for killing the bill." See? The objectors are saying "We want MORE DEBATE," voting no on cloture is the formal way to express this "we want more debate" sentiment, and the grand bargainers are taking this sentiment and calling it "we don't want more debate."

He brings up the fact that there is a budget point of order scheduled post-cloture (if cloture passes), and urges that the cloture be passed this morning.

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Watching this bunch of procedurally-false assertions being expressed this morning (defending the forced compression of debate time in order to get "this is the best you can get" shoved down the public's unwilling throat), by LYING senators who know better, it strikes me that this isn't unusual - this is their normal way of making law.

The supposed grand bargainers are weenies. They say THEY will stop debating, unless cloture is passed, and then blame the people who want more time to debate for stopping the debate. I hope the good people of Arizona kick Senator Kyl to the curb. They won't, these are the same good people who give us Senator McCain.

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Senator DeMint says this debate is now a battle between the American people and the Congress - this isn't just about immigration, the people have lost faith in their government. He uses as example, the grand bargainers have granted 10 minutes, of 60, to hear the voices of opposition (the voice of the American people).

He's right about that.

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Senator Graham sounds desperate. I hope he is desperately defeated next election. Lying sack of crap, he is. He's another one who says there can't be enforcement unless there is legislation. He invokes President Bush as helping to bring this great bill up for the people - it's the best that can be had, and after the Democrats have more power, the people will never be able to get merit-based immigration again.

Talk about a self-defeating message, this is "vote for us, because they are worse" writ large. Graham, you and every other person who sells their ideas on that basis deserves to be ridiculed and to lose. Good riddance.

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Senator Sessions notes that the nature of debate on this bill (take it or leave it, it's the best you'll get, name calling, lying, etc.) is typical of masters of the universe. Yep. Took him long enough to notice. It's typical of government, at all levels, to take power that rightfully belongs to the people. And government will take that power by force, if necessary.

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The Senate phone system is locked up due to the volume of calls. Cool - that should happen more often. Senator Vitter says the American people are asking the Senate, "What part of 'NO' don't you understand?"

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Senator Kyl says the way to restore public confidence in Congress is to pass this bill. By doing that, says he, we will return to the rule of law. This guy has been held up as an example of a good, stand up conservative Republican. Fool me fifty times, Republicans, shame on you. Fool me a hundred and fifty times, shame on you. Don't worry, I'll keep voting for you. Fool me, lie to me, insult me, keep it up.

The way to restore confidence is honesty, understanding of limits of enforcement, and transparency.

UPDATE @ 11:02

Senator Reid closes debate on this cloture motion as the Senate moves to vote to limit debate on the immigration bill. He delivers one of the lamest and weakest closing arguments I have ever heard.

Senator Sessions says that Senator Reid's extended speech, by virtue of taking over ten minutes, is operating in violation of the unanimous consent agreement. Senator Obama, who occupies the chair, does not rule as to which, as between the UC agreement and the leaders time, controls.

Good for Senator Sessions to rattle Senator Reid's cage. Rules are for the little people.

Cloture vote begins at 11:03. Answer by noon. This one may take awhile. My prediction (above) is 55-35, the thought being that there are at least 9 Senators who would rather not be held to a position on this.

11:10 Stevens and Murkowski voted NAY. I didn't pick up any other surprises in the initial vote reading.

UPDATE @ 11:27

On Thursday, June 28, the first cloture motion to limit debate on S.1639 - Comprehensive Immigration Reform Act of 2007, was
REJECTED on a 46 - 53 vote.
GOP Aye Votes: Bennett, Craig, Graham, Gregg, Hagel, Kyl, Lott, Lugar, Martinez, McCain, Snowe, and Specter

Wow - the grand bargainers couldn't even get a majority to agree to limit debate.

Now to start blaming the nativists. Ratchet up the amount and tenor of insult.

A responsible legislative body would press on, if this was in fact an urgent matter. And I think it is an urgent matter. And this is demonstrably not a responsible legislative body.

Comparing names with recent "conclusive" votes on immigration bills ...

The June 7, 2007 cloture motion to limit debate on S.1348 - Comprehensive Immigration Reform Act of 2007 was
REJECTED on a 45 - 50 vote.
GOP Aye votes: Graham, Hagel, Lugar, Martinez, McCain, Specter, and Voinovich

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On May 25, 2006, S.2611 - Comprehensive Immigration Reform Act of 2006 was
PASSED on a 62 - 36 vote.
GOP Aye votes: Bennett, Brownback, Chafee, Coleman, Collins, Craig, DeWine, Domenici, Frist, Graham, Gregg, Hagel, Lugar, Martinez, McCain, McConnell, Murkowski, Smith, Snowe, Specter, Stevens, Voinovich and Warner

UPDATE @ 12:00

The good news is that the July 4 recess can start at the close of business today.

I could either study the record a bit to try to figure out what Senator Reid plans to take up next, if anything, before the recess - or I could just wait and see.

But do check the Senate's legislative calendar of June 29 (when it's out). I predict you will see that, as a matter of formality, the comprehensive immigration reform bill is still pending.

[June 29 - Mmmmm, more crow please! I checked the legislative calendar, S.1639 is NOT pending, and the Defense Authorization Bill, H.R.1585 is the only pending piece of legislation.]

UPDATE @ 12:10

Senator Sessions is talking about the immigration bill. He observes that the promises of enforcement uttered by Congress last year, have NOT been fulfilled. A bit of a credibility problem here.

He asks that President Bush, to preserve his legacy, to improve immigration enforcement. "Make it your legacy to leave a secure border for America. ... Ask the Congress for whatever additional tools you need." Good advice.

UPDATE @ 12:30

Senator Hutchison, in a post mortem of the bill, says that Congress should work on border security and a temporary worker program, and that the handling of the existing 12 million illegal aliens is the ONLY root issue that kept this bill from moving forward.

We have temporary worker VISA programs now, do we not? Why not adjust them, if the numbers presently admitted thereby are "inadequate?"

She suggests perhaps a "safe harbor" for the illegals ... hey! A new word for "amnesty!" It's not amnesty, it's a safe harbor.

UPDATE @ 13:42

Great analysis by Beldar, on the issue of Vice President Cheney's interpretation of the Executive Order that requires executive agencies to report their handling of classified information. Does Cheney have a legal leg to stand on in contending that he and the OVP are not covered by the executive order on classified documents?.

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Senator Hatch rises to talk about handling of contentious issues in the Senate, and brings up the issue of judicial nominations. In particular, he raises the issue of Leslie Southwick's nomination being held up in the Judiciary Committee, after the nominee was approved by the Judiciary Committee months ago.

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Yesterday, over at JURIST, a collection of articles on the Senate subpoenas to the WH on the subject of domestic surveillance.

Marty Lederman has a comment at Balkinize, The President Asserts Executive Privilege, not on subpoenas for the domestic wiretapping, but on the subpoenas related to the firing of US Attorneys. See also the White House formal assertion of Executive Privilege in the US Attorney's matter.

Congressional subpoenas to the executive make for fairly substantial battles that tend to have political ramifications.

UPDATE @ 14:32

Senator Levin is up, taking about the nomination of Lt. General Lute (Cal. 165, Message 599). He supports the nomination. Lt. General Lute was nominated to be an advisor, on May 23, and was reported out of committee this past Tuesday, June 26th.

General Lute was confirmed.

UPDATE @ 17:00

Senators McConnell and Reid discussed taking S.1 - Lobby Reform, to conference. McConnell wanted assurance that nothing would be stripped from the "Senate Rules" side of the Lobby Reform bill during that conference. Turns out that Senator DeMint's S.Amdt.11 (modified by Durbin's S.Amdt.44) to S.1, to make public earmark transparency a requirement for a bill to be in order in the Senate, is the object likely to be stripped during conference. Senator DeMint objects to S.1 going to conference until the Senate agrees to S.Res.123, which is the same as S.Amdt.11/44.

The Democrats object to passing S.Res.123 - which is odd because S.Amdt.11/44 (exactly the same thing) passed on a 98 - 0 vote. So, who's to blame for S.1 not going to conference? DeMint because he knows his amendment will be stripped out (in conference where there are 4 DEM Senators and 3 GOP Senators)? or the Democrats because they won't pass the earmark transparency measure?

Link to Congressional Record Debate

Mr. DeMINT. Madam President, earlier this year, the Senate took a major step in being more transparent with the earmarking process. We worked together. We passed within the lobbying/ethics reform bill transparency and rules that would keep us from adding secret earmarks when we go to conference. I have asked repeatedly on the Senate floor that we accept that as a rule. I had asked the majority leader to amend his unanimous consent request to go to conference to include Senate acceptance of the rules we have already passed. That way we would have the comprehensive work we have all planned to have. I understand from the majority leader they are not willing to accept that, and they want to go to conference where it is our belief it will be significantly changed.

That answers that. The blame rightfully goes to the Democrats.

UPDATE @ 17:20

Senator McConnell giving a speech aimed to mend the damage done to the egos of Senators by handling the immigration bill. He says that the bill represented the best the Senate could hope to do with the issue of immigration. But he doesn't seem interested in implementing the will of the people, show us you are serious about border security.

The Senate is sad today - the failed cloture vote being a bipartisan defeat. Would they have been happy if the immigration bill had moved forward to passage? Would that have been a bipartisan victory? You betcha, Congress and the Senate in this corner, and the people, they are in the other corner.

UPDATE @ 19:30

Senator Reid tried to move S.4 - Implementing the 9/11 Commission Recommendations, to conference, and was met with objection from Senator Coburn. "A minor detail" remains to be worked out.

The Senate is winding down for the Independence Day recess. Probably a quiet day tomorrow and Monday the 9th of July. The next substantial project coming up will be H.R.1585 - Defense Authorization.

UPDATE @ June 29

I dropped a news story and a comment about "public awareness" at this point in an earlier thread <- Hit the link, the addition is short, and you won't have to "page" your browser to read the few paragraphs.

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The effort of Dow Jones and Associated Press to unseal the entirety of Miller's appeal record, in particular to unseal an affidavit by Patrick Fitzgerald as to why the Court should compel Miller (and Copper) to comply with the Grand Jury subpoena as well as sealed portions of the Circuit Court's opinion (Tatel's concurrence), is drawing closer to a conclusion. The Circuit Court docket for case No. 04-3138 has the following entry:

6/19/07 (UNDER SEAL) RESPONSE filed [1048468-1] by Appellee USA ... to court's inquiries

Without seeing the filing (it's under seal and secret), given the subject of of the case, it should be clear that the filing describes (and argues) in detail, which parts of the presently sealed and redacted record relate to matters that should be protected by grand jury secrecy, and which parts were disclosed during the conduct of the Libby trial, and therefore don't need or deserve continued protection.

Libby defenders (a shorthand label that I also apply to those who find Fitzgerald's prosecution to be or border on prosecutorial misconduct, even if those people don't per se "defend Libby") hope to find a smoking gun or evidence of one, that Fitzgerald lied to the Courts in order to get the Courts to compel reporter testimony. The hoped-for discovery is that Fitzgerald knew that Plame wasn't covert, but he continued his investigation anyway.

I'm very confident, to the point of being certain, that Libby defenders will be disappointed in what the Circuit Court eventually unseals. Most of the sealed and redacted material relates to the investigation of Rove and Cooper, and that material will remain out of public view in order to preserve grand jury secrecy. There will be no "smoking gun" of Fitzgerald misconduct. This is probably better for the Libby defenders. When much of the material remains out of sight, they can say that the "smoking gun" is still hidden, and add the Circuit Court to an ever increasing band of conspirators who "wrongly convicted Libby."

Snarky disclosure - I think those who see Fitzgerald as engaging in something resembling prosecutorial misconduct against Libby are as deranged (on that subject) as their counterparts on the left, the moonbats who see every action of President Bush and Vice President Cheney as evidence of bogeymen.

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Yesterday's debate has a number of provocative speeches. This part of Senator Corker's speech is striking to me ...

This bill is about a lot of things. Certainly, people have put a lot of effort into it--based on compassion, based on trying to solve a problem. It also, no doubt, has some more sinister components. I hate to say it: cheap labor, party politics, who is going to gain the majority. So there are a lot of different things at play here. I think we all understand that. But I really do appreciate the efforts of all involved.

Today, this is going to get down to four or five Senators. I encourage them to vote against cloture, for this reason: I think this bill is not good for America because I believe America has lost faith in our Government's ability to do the things it says it will do. We have had intelligence gaffs. We have had evolving reasons as to why we are involved in military conflicts. We have seen what has happened at the local, State, and Federal level on things such as Katrina. We have ministers who want to go on mission trips today but who cannot get passports renewed. This is about competence. It is about credibility. I think Americans feel they are losing their country. They are not losing it to people who speak differently or talk differently or are from different backgrounds; they are losing it to a government that has seemed to not have the competence or the ability to carry out what it says it will do.

I believe this bill is going to fail. What I would urge people to do is not what they have said today--and that is, to let it pass--but to move, meaning to pass into another time, but approaching it on a more modest basis, where we do the things we say we will do and build a foundation that will cause the American people to actually have faith in this Government.

I picture in my mind, outrage from the right who see the speech as wrongly critical of President Bush ("Bush-bashing," in the vernacular) because it touches on, without saying it, the rationale for going to war in Iraq, and FEMA's performance in the wake of Katrina. But I see a deeper message here, even if one disagrees with Corker's use of those examples, and it is a message that resonates with me.

Politicians cultivate a sense of dependence on the government. They make promises, that if only we give them more time, or more money, or elect them instead of their opponent, that our vision of good government will come to pass. But it's fiction. Sure, that which party is in power makes a difference is true. No argument. But there is an erosion in confidence, and that erosion is in large part due to over-promising, and to cultivating a sense that the government is the solution.

Another piece, this one by Senator Sessions, strikes me as constructive criticism, not just an observation or complaint on his part, because it also provides substantive and practical advice.

What I would ask President Bush to do with regard to his legacy on immigration would be to carry on at a much more effective and aggressive rate than he has with a movement toward enforcement. He has done things in the last several years to improve immigration enforcement more than the previous four or five Presidents, but it has not been enough.

So I would suggest to the President: Make it your legacy to leave a secure border for America. Enforce our current laws. Utilize every effective and appropriate tool we now have, which would make a huge difference. Ask the Congress for what additional tools you need. Let's begin to create a lawful system at the border. ...

So to my colleagues and particularly to my friend, the President of the United States, whom I respect so much, I would say let's make it a legacy of this Congress and this President to do everything possible, beginning today, to have a secure border in our country. I believe it would be widely approved by the American people. I believe it would be good for our country. It would be a true contribution to American society and put us on the road toward a step to adopting new and better policies for immigration.

I won't be holding my breath, but I will be watching.

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Two more names to add to the "nominations withdrawn" list.

John Ray Correll, of Indiana, to be Director of the Office of Surface Mining Reclamation and Enforcement, vice Jeffrey D. Jarrett, which was sent to the Senate on January 9, 2007.

Dale Cabaniss, of Virginia, to be a Member of the Federal Labor Relations Authority for a term of five years expiring July 29, 2012 (Reappointment), which was sent to the Senate on March 12, 2007.

UPDATE @ 9:55

Senator Reid lies about DeMint's objection to taking the Lobbying Bill (S.1) to conference. It's not because he doesn't like the earmarks provision, it's because he DOES like it, and wants it preserved as passed.

Senator Reid also mischaracterizes Coburn's objection to post-grant auditing process for monies spent to implement the 9/11 Commission recommendations under S.4 - on the one hand (in public), Senator Reid says he wants the same process that Senator Coburn has asked for, which is to demand Congressional oversight of spending of public money, but on the other hand, (in private) Reid is blocking that oversight from being cast into law.

DELAY TACTICS

I want all of the Republicans to know, I am not going to ask again for unanimous consent to go to conference. When they get ready to go to conference, they can come to us.

That presents a great opportunity for the Republicans. Senator McConnell can ask for unanimous consent in the style propounded by Senator Kyl for the 9/11 - "TSA collective bargaining" issue, and in the style of Senator DeMint for the earmarks reform issue; and show the view that the bottom source for failing to go to conference is Democratic objection to committing to adhere to agreements they say they have already made.

Senator Schumer comes up to amplify Senator Reid's multiple lies, in a style that only he can perform. What an artist. BS artist, that is.

No votes today, but the backlog of judicial nominees presently on the Senate's executive calendar will be voted on Monday, July 9, starting at about 5:30 p.m. That backlog comprises four District Court nominations, O'Grady (ED Va.), Maloney (WD Mi.), Neff (WD Mi.), and Jonker (WD Mi.).

UPDATE @ 12:15

Senator Sessions is up talking about the Judiciary Committee subpoenas to various past and present White House officials, and the White House assertion of executive privilege. As usual, a good speech. Senator Sessions highlights the difference between legal and political, and what he characterizes as abuse of a legal power (subpoena) by the Senate Judiciary Committee.

UPDATE @ 12:30

Talk about timing, the DC Circuit Court has issued its opinion and further unsealed the record in the Miller and Cooper (Libby) case I noted above. HT to HowAppealing, the further unsealed opinion is at http://pacer.cadc.uscourts.gov/docs/common/opinions/200706/04-3138d.pdf. As Howard Bashman well summarizes, "the appellate court has agreed to make public more, but not all, of the redacted portions." Italicized portions of the revised opinion are the fruit of the Dow Jones/AP appeal.

Text of the opinion further releasing information - text of newly released information.

UPDATE @ 13:30

And another hat tip to HowAppealing for this HUGE piece of news. (shame on me for converting the Libby/Miller stuff to text before reading a bit further at Howard Bashman's place!)

"Supreme Court to Review Guantanamo Cases": Pete Yost of The Associated Press provides a report that begins, "The Supreme Court, reversing course, agreed Friday to review whether Guantanamo Bay detainees may go to federal court to challenge their indefinite confinement."

Lyle Denniston covers the story at ScotusBlog (he's an awesome resource), Bobby Chesney notes the event in his Supreme Court grants cert in Boumediene after all, and the folks at Balkinize will eventually be all over this development.

Indicative of the importance of this development, further detailed posts at ScotusBlog: Questions Presented in the Detainee Cases - by Ben Winograd, and Materials in the Detainee Cases - by Jason Harrow.

And also a substantially sized entry at JURIST, Supreme Court to hear Guantanamo Bay detainee habeas cases.

The basic upshot of all this is that SCOTUS intends to be involved in ruling on the recently passed Military Commissions Act. But the timing and procedural history leading up to the announcement of agreeing to review the cases is significant. My initial reaction is "Holy crap!!!!! The Court is planning to clip both executive and legislative wings."

UPDATE @ 18:10

More news on the Military Commissions trials, over at ScotusBlog, Lyle Denniston's Military judge refuses to revive war crimes case describes the affirmation by Military Judge Brownback, of his earlier ruling that the Combatant Status Review Tribunal (CSRT) had not determined that the defendant was an "unlawful enemy combatant."

The plot thickens, indeed.

Previous action in the case, including cites to comments by Senators (see, there is a connection to the Senate) is in Immigration Redux, continued - S.Amdt.1150 to S.1138 - search for the text "Khadr"

UPDATE @ 20:05

Over at The American Spectator ...

End of a Free-Trade Era - By Doug Bandow

The president's "fast track" negotiating authority expires tomorrow. It will require bipartisanship to get it back. Otherwise, chock [sic] up another Bush-era casualty.

That issue sure is flying under the radar. The Record has a few speeches on the subject this year, and I haven't checked the White House website for any statements that urge Congress to renew the trade negotiating authority. Okay, I just checked the White House for "fast track", "TPA", and "Trade Promotion Authority" -- there is a little material on the subject of fast track trade negotiating authority.

Fact Sheet: Job Creation Continues - June 1, 2007

President Bush Is Committed To Keeping Our Economy Growing By Advancing Free And Fair Trade. In May, the Administration reached a breakthrough trade deal with Congressional leadership that will be applied to free trade agreements with Peru, Colombia, Panama, and South Korea. The agreement also opens the way for bipartisan work on extending the President's Trade Promotion Authority. The Administration continues working aggressively to make progress on the Doha Round of trade negotiations.

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World Trade Week, 2007 - A Proclamation by the President - May 18, 2007

The United States continues to work with other nations in the World Trade Organization to complete the Doha Development Round, which has the potential to lift millions of people out of poverty. I have also called upon the Congress to extend Trade Promotion Authority so we can complete the Doha Round and continue to negotiate robust trade agreements. By working to expand trade, we open new markets for American products and services and help build free economies that can raise the standard of living for families.

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Press Briefing by Dana Perino - March 26, 2007

MS. PERINO: Yes, on Wednesday the President is giving a speech at the Cattlemen's Association. Two broad themes for that speech are that the President will discuss the importance of trade and opening markets for America's producers, especially the beef industry and other agricultural products. There are a number of trade deals before the Congress. They are Peru, Panama, and Colombia. And the U.S. Trade Representative is also in the midst of promising discussions with South Korea.

So he is going to be talking about that, including asking Congress to reauthorize trade promotion authority, shorthand TPA, as you hear people talk about that. But he'll also talk about the supplemental legislation that's moving through. He'll use it as an opportunity to address the global war on terror, and the importance of allowing the new Iraq plan to succeed. The President will say it is dangerous to our soldiers on the ground to let Washington politics delay this funding. So that will happen on Wednesday.

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Press Gaggle by Tony Fratto and Al Hubbard - January 30, 2007

Q What if Congress doesn't renew fast track?

DIRECTOR HUBBARD: Again, TPA, we all know, is extremely important -- TPA meaning Trade Promotion Authority, the fast track -- is very important to passing any trade bill. And so that's been critical during this administration, and it will be critical to future administrations.

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DOJ Loses Brand

After just over two years at the Department of Justice, Assistant Attorney General for Legal Policy Rachel Brand is jumping ship. Bush first nominated Brand in March 2005. During her tenure, Brand played a large role in securing reauthorization of the USA Patriot Act. The former White House counsel office aide and clerk to Supreme Court Justice Anthony Kennedy was also responsible for shepherding Chief Justice John Roberts and Justice Samuel Alito's confirmation hearings.

No, I don't usually scan "legaltimes," a hat tip to HowAppealing for the lead.

UPDATE @ 22:33

Over at Volokh, a very informative post on today's SCOTUS decision to rehear Boumediene and Al Odah, by Orin Kerr. Click through to Professor Kerr's testimony before the Senate Judiciary Committee for a more substantive analysis.

UPDATE @ July 1

The number of US Attorney resignations and replacements in 2001 and 2002 corroborates the contention that President Bush and/or AG Ashcroft requested or expected "mass resignation" of United States Attorneys. Whether or not either President Bush or AG Ashcroft made a formal request, it's a fact that mass US Attorney resignations occurred after President Bush took office in 2001.

To compare the number of United States Attorneys replaced by Presidents Clinton and Bush when they took office, one can use the nominations search tool, searching for the string "United States Attorney" (exact match only), and limiting the search to cases where the legislative action was "Confirmed by Senate." A simplified version of that search is provided below, followed by the raw number of US Attorneys confirmed in the last eight Congresses:

Congress:

  • US Attorneys Confirmed by the Senate Under President Clinton
    • 103rd Congress: 87
    • 104th Congress: 4
    • 105th Congress: 18
    • 106th Congress: 14
  • US Attorneys Confirmed by the Senate Under President Bush
    • 107th Congress: 84
    • 108th Congress: 14
    • 109th Congress: 26
    • 110th Congress: 1

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Most people are, as usual, forming firm opinions and convictions without undertaking an open-minded inquiry to ascertain the similarities and differences between the conduct of Presidents Clinton and Bush regarding the replacement of United States Attorneys. Hat tip to left-wing wingnut "watchingthewatchers", the following appears in Duke Law Journal Norm Theory and the Future of the Federal Appointments Process, by Michael J. Gerhardt.

... new norms are more likely to develop when there is conflict over the meaning or status of an existing norm. ^29 Such conflict is evident in the recent uncertainty over whether sitting U.S. Attorneys should offer to resign to give newly elected presidents the chance to replace them. Before Bill Clinton's election, presidents expected that such resignations would be offered. ^30 After Clinton's inauguration, several sitting U.S. Attorneys balked at offering to resign their posts once the Senate confirmed Janet Reno as President Clinton's Attorney General. ^31 After becoming Attorney General, Reno had made what she thought was the routine request that sitting U.S. Attorneys submit their resignations to her, so she could consider whether to reappoint them. She did not expect negative backlash because similar requests had been made by her predecessors in the Carter, Reagan, and Bush administrations and honored by previous U.S. Attorneys. Their refusals to tender their resignations embarrassed Reno, and, in fact, the desire to cause Reno embarrassment may have been the impetus for the refusals. ^32 After sending mixed signals on whether all sitting U.S. Attorneys should proffer their resignations to Attorney General Ashcroft, ^33 President George W. Bush and Attorney General Ashcroft requested the resignations of all but a few of the nation's U.S. Attorneys. ^34 Not a single Republican leader questioned the propriety of Bush's and Ashcroft's actions.

---===---

Senator Leahy on NBC's Meet the Press program, says he is willing to ask for a Contempt of Congress citation if the subpoenas regarding the firing of US Attorneys are not complied with.

CORRECTION: My original post erroneously said a majority vote of both bodies (House and Senate) was required for a contempt of congress citation. Wikipedia has a good introduction to contempt of congress proceedings at http://en.wikipedia.org/wiki/Contempt_of_Congress.

He argues that he does not know where the assertion of "executive privilege" bottoms out, seeing as how President Bush was uninvolved in the firing. I noted this earlier, not on the detail point of executive privilege, but on the firings themselves - who, exactly, has the power to fire US Attorneys? The underlings? The AG (who says he didn't make the decisions, he just endorsed them)? Or is such a termination a power properly reserved to the office of the president?

I thought the issues of precisely who has the firing power and how that power is exercised would have been of greater interest.

I predict a smoke screen from both sides - Congress and the White House. Now that the argument is one-step removed from removal/replacement substance, and shifted to the the subject of executive privilege, maybe the question of which executive "officer" has the power to terminate will gain some prominence.

President Bush Addresses Resignations of U.S. Attorneys - March 20, 2007
White House Counsel's Letter Regarding U.S. Attorneys - March 20, 2007

Press Briefing by Dan Bartlett - March 13, 2007

  Q Last one. Harriet Miers' revelation that there's this idea that she wanted to clear house of all the U.S. attorneys, why is this coming out now and what's the timeline of this?
  MR. BARTLETT: It's coming out again because of the Kyle Sampson emails and papers that were being collected in order to respond to the request being made by the Department of Justice, that there's email traffic that jogged the memory of people at the White House and with Kyle Sampson, particularly -- because what Harriet Miers was doing was taking a look and floating an idea to say, hey, should we treat the second term very similar to the way we treat a first term? Because, remember, when Bill Clinton came into office he removed all 93 U.S. attorneys. The President chose not to remove all 93 U.S. attorneys -- removed significant numbers of them, but we left people in key positions because of the role they played.
  So those discretionary decisions made by a President, by an administration are often done. And what Harriet floated was the idea of saying should we treat the fifth year as the first year -- give new blood -- an opportunity for new blood to come in. Kyle, to his credit, and others said, that would be highly disruptive to the process, there are a lot of good U.S. attorneys that are performing; some of them have not served full four-year terms because we hadn't removed them all in the first place.

---------

Press Briefing by Tony Snow - March 15, 2007

  Q Both the Media Research Center, as well as The Wall Street Journal, in an editorial headlined, "The Hubbell Standard: Hillary Clinton knows about sacking U.S. attorneys," deplored the old big media uproar about the firing of eight U.S. attorneys, when the Clinton administration fired 93 in one day. And my question: Does the President agree or disagree with The Wall Street Journal and the Media Research Center?
  MR. SNOW: I'm not aware that he's expressed an opinion on it. Let me just remind everybody again, U.S. attorneys are --
  Q What do you think?
  MR. SNOW: It's not my job to get up here and expound my views.

---------

Press Briefing by Tony Snow - March 16, 2007

  Q A bizarre idea, firing 93 people.
  MR. SNOW: Oh, happened once before. (Laughter.)
  Q Even so, still bizarre.
  MR. SNOW: Okay, well, I'll let you -- let President Clinton make the calls to you.

I see that Mr. Bartlett was careful to distinguish the routine first term mass resignations from the possibility of second term mass resignations, but he followed with a statement that, taken out of context, clearly implies that President Bush was much more reserved in replacement of US Attorneys than President Clinton, "Because, remember, when Bill Clinton came into office he removed all 93 U.S. attorneys. The President chose not to remove all 93 U.S. attorneys ..."

I'll be the last person to defend President Clinton -- but to invite this raw number comparison amounts to a diversion and smoke screen from an honest framing of the issue.

The Hubbell Standard: Hillary Clinton knows all about sacking U.S. Attorneys.
WSJ OpinionJournal - Wednesday, March 14, 2007

UPDATE @ July 2, 12:31 p.m.

Fox News reports that the CADC has rejected Libby's appeal of being denied bail pending appeal.

Firedoglake has more details at BREAKING: Libby Motion For Release On Bond Pending Appeal -- DENIED, TheNextHurrah has a link to the order at Inmate 28301-016, Jeralyn Merritt (TalkLeft) has comments at Appeals Court Denies Bond for Scooter Libby, and some of the commentary at Tom Maguire's JustOneMinute is at Libby Appeal Denied.

Yours truly commented on the subject last week, at Beldar's A prediction: The D.C. Circuit will reverse Judge Walton, and followed up at his D.C. Circuit panel denies Libby's application. I don't find the decision surprising in the least - and as I've said before, I take only sorrow, no joy, from the case. From my point of view (read "opinion" there) the case is incredible in being a clear portal into partisanship over principle, on both sides.


            BEFORE:   Sentelle, Henderson, and Tatel, Circuit Judges

                                       O R D E R

            Upon consideration of the motion for release pending appeal, the opposition 
     thereto, and the reply, it is

   
            ORDERED that the motion for release pending appeal be denied.  Appellant has 
     not shown that the appeal raises a substantial question under 18 USC Sec. 
     3143(b)(1)(B).  See United States v. Perholtz, 836 F.2d 554, 555 (D.C.Cir. 1987) (per 
     curiam) (substantial question is one that is "close" or that "could very well be decided 
     the other way").

                                     Per curiam

                           [initialed by all three judges]

---===---

Grant of Executive Clemency
A Proclamation by the President of the United States of America

WHEREAS Lewis Libby was convicted in the United States District Court for the District of Columbia in the case United States v. Libby, Crim. No. 05-394 (RBW), for which a sentence of 30 months' imprisonment, 2 years' supervised release, a fine of $250,000, and a special assessment of $400 was imposed on June 22, 2007;

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, pursuant to my powers under Article II, Section 2, of the Constitution, do hereby commute the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence.

IN WITNESS THEREOF, I have hereunto set my hand this second day of July, in the year of our Lord two thousand and seven, and of the Independence of the United States of America the two hundred and thirty-first.

---------

Statement by the President

The United States Court of Appeals for the D.C. Circuit today rejected Lewis Libby's request to remain free on bail while pursuing his appeals for the serious convictions of perjury and obstruction of justice. As a result, Mr. Libby will be required to turn himself over to the Bureau of Prisons to begin serving his prison sentence.

I have said throughout this process that it would not be appropriate to comment or intervene in this case until Mr. Libby's appeals have been exhausted. But with the denial of bail being upheld and incarceration imminent, I believe it is now important to react to that decision.

From the very beginning of the investigation into the leaking of Valerie Plame's name, I made it clear to the White House staff and anyone serving in my administration that I expected full cooperation with the Justice Department. Dozens of White House staff and administration officials dutifully cooperated.

After the investigation was under way, the Justice Department appointed United States Attorney for the Northern District of Illinois Patrick Fitzgerald as a Special Counsel in charge of the case. Mr. Fitzgerald is a highly qualified, professional prosecutor who carried out his responsibilities as charged.

This case has generated significant commentary and debate. Critics of the investigation have argued that a special counsel should not have been appointed, nor should the investigation have been pursued after the Justice Department learned who leaked Ms. Plame's name to columnist Robert Novak. Furthermore, the critics point out that neither Mr. Libby nor anyone else has been charged with violating the Intelligence Identities Protection Act or the Espionage Act, which were the original subjects of the investigation. Finally, critics say the punishment does not fit the crime: Mr. Libby was a first-time offender with years of exceptional public service and was handed a harsh sentence based in part on allegations never presented to the jury.

Others point out that a jury of citizens weighed all the evidence and listened to all the testimony and found Mr. Libby guilty of perjury and obstructing justice. They argue, correctly, that our entire system of justice relies on people telling the truth. And if a person does not tell the truth, particularly if he serves in government and holds the public trust, he must be held accountable. They say that had Mr. Libby only told the truth, he would have never been indicted in the first place.

Both critics and defenders of this investigation have made important points. I have made my own evaluation. In preparing for the decision I am announcing today, I have carefully weighed these arguments and the circumstances surrounding this case.

Mr. Libby was sentenced to thirty months of prison, two years of probation, and a $250,000 fine. In making the sentencing decision, the district court rejected the advice of the probation office, which recommended a lesser sentence and the consideration of factors that could have led to a sentence of home confinement or probation.

I respect the jury's verdict. But I have concluded that the prison sentence given to Mr. Libby is excessive. Therefore, I am commuting the portion of Mr. Libby's sentence that required him to spend thirty months in prison.

My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby. The reputation he gained through his years of public service and professional work in the legal community is forever damaged. His wife and young children have also suffered immensely. He will remain on probation. The significant fines imposed by the judge will remain in effect. The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long-lasting.

The Constitution gives the President the power of clemency to be used when he deems it to be warranted. It is my judgment that a commutation of the prison term in Mr. Libby's case is an appropriate exercise of this power.

I'm glad President Bush commuted the sentence today, instead of waiting for the day Libby was due to report. I'd have preferred Fitz never been stuck to review what the DOJ already knew, but if wishes were ponies, my house would be full of pony poop.

At any rate, the issue has been shifted back to where it belongs, the political sphere under President Bush's direct influence. And I'm positively impressed with President Bush's statement today. It captures the opposing principles and sides very well. Kudos from me.

UPDATE @ July 3

I've updated my Predictions on the Libby Trial with comments pertinent to the commutation. My comments were predicated on my mistaken belief that President Bush had, by the language on his statement associated with the commutation ("I respect the jury's verdict", "The consequences of his felony conviction on his former life ... will be long-lasting") ruled out a pardon. But a subsequent express statement by President Bush that he neither rules a pardon in or out causes me to reserve my conclusion. For now, I'll parse President Bush as closely as I did President Clinton - and I'll watch what he does instead of taking him at his word.

The connection to the Senate? See Senator Reid's statement, that opens with, "The President's decision to commute Mr. Libby's sentence is disgraceful." I'm sure the commutation will result in more chatter, and it's particularly humorous to me, reading some of Senator Reid's lies of last Friday ...

For the first time in 131 years, someone working in the White House is indicted, the man is now in prison, Scooter Libby. Safavian, head of Government contracting for the President ... he is now in prison.

Neither Libby nor Safavian was in prison. Safavian is free on bail pending the outcome of his appeal, and Libby's prison sentence was commuted before it started.

---===---

And on a completely different subject, S.185 - Habeas Corpus Restoration Act of 2007, has been reported out of the Judiciary Committee with Senate Report 110-90. Timely reading, in light of SCOTUS decision to rehear GITMO detainee cases (and maybe the Hamdan case as well), and the Military judges' decisions that were unfavorable to the administration.

---===---

Lots of Libby commutation questions asked during the Press Briefing by Tony Snow - July 3, 2007.

UPDATE @ July 6

I started to collect links and CIA-leak related text from White House pressers some time ago, to research the White House stated position on "dealing with the leaker." The collection spans the dates from July 22, 2003 to the present. I don't track pressers on a "daily" basis as a matter of routine, but the reports of Tony Snow's July 5 comments about the Clintons, where he was reported to have said "I don't know what Arkansan is for chutzpah, but this is a gigantic case of it," caused me to seek out the record.

I was surprised to find that particular presser is NOT listed or linked at the White House Press Briefing Page. I wonder how many other press contacts of similar duration and audience are made available only as the press sees fit, instead of being made available so the public can fact-check the press.

At any rate, more Libby commutation questions asked and answered:

President Bush Visits with Wounded Military Personnel - July 3, 2007
Press Briefing by Scott Stanzel - July 5, 2007
Tony Snow Press Gaggle - July 5, 2007

---===---

A couple of timely Congressional Research service papers are served up by Steven Aftergood at FAS. I grabbed the one regarding detainees. It has a good summary of the various cases, and is a decent primer for understanding the Habeas Corpus Restoration Act if (when) that comes up for debate in the Senate.

I also grabbed the one on recess appointments, and was surprised to find that President Bush made two recess appointments of Circuit Court judges -- for some reason I was under the mistaken impression that he had not made any recess appointments of judicial nominees.

---===---

Also at FAS, CRS Views Private Security Contractors in Iraq on the subject of private contractors (under contract to the United States government) operating in Iraq. Quoting a LA Times article, "The number of U.S.-paid private contractors in Iraq now exceeds that of American combat troops."

---===---

JURIST provides some news on a court filing by Hatfill, the doctor who was under suspicion as the anthrax mailer, in Hatfill seeks court order forcing journalists to reveal sources in anthrax case. An interesting confluence of factors here, Hatfill aims to pierce press privilege in order to obtain evidence as to which government officials told the press that he was a person of interest, and the case is being heard by DC District Court Judge Reggie Walton.

In this case, the press and government interests are in alignment - neither side wants the evidence to be exposed.

UPDATE @ 11:10

A collection of news article and a link to the 6th Circuit Opinion dismissing a suit relating to the NSA surveillance program (or Terrorist Surveillance Program - TSP), at this HowAppealing link. The decision mirrors the cursory analysis I provided on August 17, 2006, at Judge Anna Diggs Taylor Rules against NSA Terrorist Surveillance

Having just skimmed the opinion, my first impression is that the Judge made some startlingly conclusory leaps, especially as to the injury to the plaintiffs. For all we know, the surveillance (if there was any) was reasonable and based on probable cause, but until an admission (specific leak against a plaintiff) or a prosecution ensue, there is no way to tell.

The 6th Circuit said there was no specific evidence that the plaintiffs were the subject of surveillance.

I'm sure Circuit Judge Ronald Lee Gilman's dissent is head and shoulders better than the tripe put out by Judge Anna Diggs Taylor last August.

UPDATE @ 13:50

Senator Domenici's statement on his position vis-a-vis the future course of military action in Iraq is making news. It was the primary (just about only) topic of question and discussion in the White House July 6 Press Gaggle by Tony Fratto, and (plagarizing the 19 of 193 entries from www.topix.net on this subject) the print media is having a field day.

  1. GOP senator Domenici withdraws support of Iraq policy - Detroit Free Press
  2. Domenici to change policy stance on Iraq war - Heath Haussamen on New Mexico Politics
  3. 4th GOP Senator Breaks With Bush War Plan - TheHawaiiChannel
  4. (Sen. Pete) Domenici calls for a change in Iraq strategy - Free Republic
  5. Domenici wants change in course in Iraq - KOB
  6. Domenici Joins Other GOPers Calling for Change in Iraq - Fox News
  7. Domenici Calls For Change In Course In Iraq - KOAT.com
  8. Domenci Breaks with Bush War Policy - The Washington Post
  9. Domenici Breaks Ranks With President Over Iraq - KOAT.com
  10. Domenici Breaks Ranks - Hoffmania!
  11. GOP Domenici Breaks With Bush On Iraq - The Huffington Post
  12. Domenici AnnouncesShift In Iraq Policy, Calls For Starting Troop Redeployment - Think Progress
  13. Bush War Plan Loses 4th GOP Senate Ally - NewsNet5
  14. Domenici is the latest.... - Washington Examiner
  15. Pete Domenici Flips On Iraq Re-Deployment - Crooks and Liars
  16. Senate's Domenici Say Iraq Government Is `Failing,' New U.S. Policy Needed - Bloomberg
  17. Domenici calls for change in Iraq strategy - Las Cruces Sun-News
  18. GOP Sen. Domenici Abandons Bush On Iraq Policy, Becoming Latest Defection On Unpopular War - KOTV Tulsa
  19. Domenici calls for change in Iraq strategy - KXMB-TV Bismarck

It was a given that Iraq policy statements will be proposed in the Senate, as amendments to H.R.1585 - the defense authorization bill. That debate will begin next week, rather than being deferred until September.

UPDATE @ 16:15

Jeralyn Merritt undertook an interesting course of research, to prepare her article Libby, the Marc Rich Pardon and Congressional Hearings. I have never reviewed the details of Libby's involvement in the Rich case (or the Rich case itself) or Libby's involvement in the subsequent pardon by President Clinton. I haven't fact checked Jeralyn's article for errors, but find it an easily-readable historical synopsis that is quite amendable to being fact checked.

The short version is that Libby didn't think Marc Rich was guilty as charged (nor was his company, even though Rich's company paid a 200 million dollar settlement), and that President Clinton had adequate and substantive basis for granting a pardon to Marc Rich.

At any rate, I think it's ludicrous to assert that Libby's commutation doesn't represent at least favoritism - but the President has the power of clemecy and all that can be done after the power is exercised is air out the exercise for public review. It would be hypocritical to assert that Congress is out of bounds to investigate the Libby pardon, but was in bounds when it investigated the Rich pardon.

UPDATE @ 18:10

A couple of good posts at Volokh on the subject of the 6th Circuit reversal of Judge Taylor's TSP-related decision: Plaintiffs Lack Standing to Challenge NSA Surveillance (Jonathan Adler) and Sixth Circuit Reverses Judge Taylor on NSA Surveillance Case (Orin Kerr). Lyle Denniston also weighs in (at ScotusBlog) with Circuit Court bars challenge to NSA spying.

UPDATE @ 20:40

On the detainee front, the government has filed a motion opposing the introduction of what is known as "The Abraham Declaration." Text of the Motion in Opposition. An interesting point to note is that the filing is by, in part, Peter D. Kiesler. Kiesler has been a nominee since June 29, 2006, for a seat on the DC Circuit Court. His nomination was twice returned to President Bush, and returned to the Senate both times. The nomination has never moved out of the Judiciary Committee.

I've read the Abraham Declaration (it's attached to Al Odah's Reply to Opposition to Petition for Reharing before SCOTUS, filed on June 22) -- the government's brief provides an appropriate counterpoint.

Al Odah's Reply brief, including the Abraham Declaration, is linked from Lyle Denniston's Final push for rehearing for detainees at ScotusBlog.

UPDATE @ 21:40

LOL. Says JURIST, Congressman McDermott will file a petition for a writ of certiorari to try to get his loss reversed. Fifty bucks says he'll be denied cert. It's a sucker bet, there is no way the Supreme Court will take this case. McDermott lost - the decision wasn't difficult or close, for any of the Courts that heard it.

posted by cboldt at 6/28/2007 09:30:00 AM

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