Thursday, July 26, 2007

Homeland Security Appropriations [H.R.2638] and Other

It's just a simple fact that my level of interest in some Senate actions is low, to the degree that I don't have any comment. The Education Bill is in that category. And while the Homeland Security Bill is likely to contain a few nasty surprises, I haven't taken the time to review the bill or its amendments in any detail. "You're on your own."

This preview of the nature of debate was shamelessly lifted from the July 25 Daily Digest:

Pending:

  • Byrd/Cochran Amendment No. 2383, in the nature of a substitute.
  • Landrieu Amendment No. 2468, to state the policy of the United States D1047Government on the foremost objective of the United States in the Global War on Terror and in protecting the United States Homeland and to appropriate additional sums for that purpose.
  • Grassley/Inhofe Amendment No. 2444, to provide that none of the funds made available under this Act may be expended until the Secretary of Homeland Security certifies to Congress that all new hires by the Department of Homeland Security are verified through the basic pilot program authorized under section 401 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 or may be available to enter into a contract with a person, employer, or other entity that does not participate in such basic pilot program.
  • Cochran (for Alexander/Collins) Amendment No. 2405, to make $300,000,000 available for grants to States to carry out the REAL ID Act of 2005.
  • Schumer Amendment No. 2416, to evaluate identification card technologies to determine the most appropriate technology for ensuring the optimal security, efficiency, privacy and cost of passport cards.
  • Schumer Amendment No. 2461, to increase the amount provided for aviation security direction and enforcement.
  • Schumer Amendment No. 2447, to reserve $40,000,000 of the amounts appropriated for the Domestic Nuclear Detection Office to support the implementation of the Securing the Cities initiative at the level requested in the President's budget.
  • Schumer/Hutchison Amendment No. 2448, to increase the domestic supply of nurses and physical therapists.
  • Dole Amendment No. 2462, to require that not less than $5,400,000 of the amount appropriated to United States Immigration and Customs Enforcement be used to facilitate agreements described in section 287(g) of the Immigration and Nationality Act.
  • Dole Amendment No. 2449, to set aside $75,000,000 of the funds appropriated for training, exercise, technical assistance, and other programs under the heading State and local programs for training consistent with section 287(g) of the Immigration and Nationality Act.
  • Cochran (for Grassley) Amendment No. 2476, to require the Secretary of Homeland Security to establish reasonable regulations relating to stored quantities of propane.

And this was likewise lifted, and not only does it predict what will be talked about today, it also states a past action ...

By 52 yeas to 44 nays (Vote No. 277), Senate sustained the ruling of the Chair that there was no defense of germaneness for the Graham Amendment No. 2412, to ensure control over the United States borders and strengthen enforcement of the immigration laws. ... the amendment thus fell.
Yup. According to a majority of senators, border control and enforcement of immigration law are not germane to Homeland Security. Isn't that precious.

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With half of an ear, I noticed a substantial amount of speech time taken on the subject of the nomination of Leslie Southwick to be Circuit Court judge. Senator Cornyn's speech (Recent Senate Actions) is a good, short read - touching on what he repeatedly refers to as a "hyperpartisan atmosphere." Bully for us Senate-circus watchers, that's my attitude on the subject. A short view of history from his eyes, and a preview of what may be yet to come ...

That vote on the Scooter Libby commutation was actually vitiated, something I have never seen happen before, but I guess anything can happen by unanimous consent in the Senate, and it did. And there was no vote on the amendment to deal with the Clinton pardons. ...

... to the detriment of passing good bipartisan legislation, the Senator from Wisconsin, Mr. Feingold, announced recently his intention to submit two resolutions to censure the President, one for his handling of the war in Iraq and the other for antiterrorism policies the administration has established. Of course, if he does follow through with his stated intention to submit these censure resolutions, that would prompt debate on what I believe would be meaningless political gestures and would further delay substantive legislation we should be considering.

Senator Durbin spoke against the Southwick nomination (with gross lies and mischaracterizations); Senator Cornyn rebutted Durbin for at pages 9882-3 in the midst of the appropriations debate; and Senator Specter also rebutted Durbin, at pages 9883-6.

H/T to HowAppealing.law.com ...

"'Gang' Courted for Southwick": Roll Call today contains an article (subscription required) that begins, "GOP Senate leaders are looking to re-enlist members of the bipartisan 'Gang of 14' to help break the impasse over the stalled appellate court nomination of Leslie Southwick, a move that has temporarily delayed Republican plans to make the appointee ground zero for a major Senate rematch over the federal bench."

Well that sure is peachy. Recall my prediction, Southwick passes, 3 others (more conservative) go under the bus, ever so quietly.

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My take is that the Republicans as a whole (I'm not referring just to the Senate) are feeding the hyperpartisan atmosphere with prevarication by some important and powerful people - and at this moment I am thinking of Attorney General Gonzales, whose actions I have criticized sharply for many months.

In addition to his ham-handed "answers" on who drove the replacement of US Attorneys, now he's caught in what looks to be a direct lie as to which "secret" program he was talking of when he gave testimony to Congress, as WH Counsel, during a hearing on the Terrorist (or, if you're a lefty, "Domestic") Surveillance Program.

Asked if a subject of a March 10, 2004 DoJ meeting with 8 top Congresspeople was the warrantless surveillance program, he answered NO. "Gonzales testified that the meeting was not called to discuss a dispute over the National Security Agency's controversial warrantless surveillance program." In defense, he changes the question to either whether or not there was disagreement within the administration as to the legality/constitutionality of "that" program; or whether or not the Congresspeople expressed concern or disagreement with continuing "that" program. And then he argues, with the logic that if the objections were on another program, then the March 10, 2004 meeting was NOT on the warrantless surveillance program. Marty Lederman has a more detailed review along the same lines, and his has enough detail to show how Gonzo can be taken as literally correct. Reminds me of "I did not have sex with that woman," and "It depends on what the meaning of 'is' is."

My take? Prevarication creates major trouble in the long run. Gonzales is not trustworthy, and he is not smart. To use the AUMF as a primary argument in support of this program results in too little justification for what is arguably good security practice that should continue to exist after the AUMF runs out. In fact, the administration has used a strange definition for "foreign intelligence," by drawing the line at "won't surveil purely domestic calls." I draw a bit fat "Huh?" on that one, have for the year and a half that this issue has been swirling around. See this of February 2006, for example. The president has every right to obtain foreign intelligence information without a warrant, regardless of where that foreign intelligence information originates.

This week, Gonzales argues that FISA needs to be amended because technology has advanced (link to prepared statement)

It has been almost thirty years since FISA was enacted, and revolutionary advances in telecommunications technology in that time have upset the delicate balance that the Congress originally struck in the statute. As a result, FISA now imposes a regime of court approval on a wide range of intelligence activities that do not substantially implicate the privacy interests of Americans--an unintended consequence that has impaired our intelligence capabilities. In many cases, FISA now requires the Executive Branch to obtain court orders to monitor the communications of individuals posing a threat to our national security located overseas. This process of obtaining a court order necessarily slows, and in some cases may prevent, the Government's efforts to conduct surveillance of communications that are potentially vital to protecting the national security.

This situation is unacceptable--we must quickly reform FISA's outdated legal framework and ensure that the Intelligence Community is able to gather the information it needs to protect the Nation.

But Gonzales' gobbledygoop represents a radical departure from the NSA's position in 2000 ...

The result today at NSA is an intelligence gathering system that operates within detailed, constitutionally-based, substantive, and procedural limits under the watchful eyes of Congress, numerous institutions within the Executive Branch, and -- through the FISA -- the judiciary. The privacy framework is technology neutral and does not require amendment to accommodate new communications technologies.

The issue isn't a technology change, technology in 2000 was substantially the same as in 2004. What's at issue is a policy and practices change, whereby the government has an urge to view more data, where it is UNKNOWN whether or not that data (interpersonal communications) contains foreign intelligence information. It's a policy change, but it's being argued as if there is no policy change, just a need to react to technology change. Pardon my impatience with the bogus argument.

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The contempt charges against Harriet Miers and Josh Bolten aren't going to go away quietly. They will be litigated, and the court's conclusions (as to what testimony, if any, must be provided to Congress) will have some effect. But the timeline for getting the matter to court is two months more or less, and then however long the question is before the court ... don't hold your breath for a quick answer.

Lots of details in links from The House Judiciary Contempt Report, including a link to the report itself.

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An interesting piece at JURIST on the subject of the Cole Bombing, US judge orders Sudan to pay almost $8M for USS Cole bombing. Sudan? That country also contains the Darfur genocide. The "war" on terrorism has a worldwide reach.

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10:19 - Senator Reid admitted two things, that he threw a temper tantrum, and that he was wrong. The subject of those admissions is a characterization of a Democratic objection to an amendment on the subject of border security.

Mr. REID. But Senator Graham, he came to us after all the changes, the suggested changes in the legislation, and he said: You take our bill as it is written. Now it was not easy to get that approved on our side, but we did get it done. There is an objection now. I am sorry that there will not be the money for border security, but that is the way it is. ...

Mr. CORNYN. Mr. President, I disagree with the characterization of the distinguished majority leader. The objection to the proposed unanimous consent was to only a portion of the original Graham amendment of which I was a cosponsor. It completely overlooked and ignored 45 percent of the illegal immigration in this country caused by people who enter with a visa that is legal but then they overstay. My suggestion to the distinguished majority leader and other colleagues is that we not ignore that 45 percent but, rather, include that as an acceptable expenditure under current law for part of the $3 billion.

He has explained to me that there is objection on his side to including that 45 percent of illegal immigration as part of the accepted expenditures for this $3 billion. I am sure he has accurately reported what his conference or caucus has said. But my concern is that we not spend money on the border security component and then pat ourselves on the back and claim success when, indeed, the proposal would have ignored 45 percent of the cause of illegal immigration. We need an approach that will deal both with border security as well as the interior enforcement caused by visa overstays.

And so, a debate and vote on the Graham/Pryor S.Amdt.2480 - text unavailable. The amendment is in the nature of an off-budget emergency expenditure in the amount of 3 billion dollars.

Graham/Pryor S.Amdt.2480 - to ensure control over the United States borders and strengthen enforcement of the immigration laws, was PASSED on a 89 - 1 vote. Nay vote by Senator Voinovich.

UPDATE @ 13:05

On the subject of detainees, H/T to JURIST for a summary, and links to detailed analysis, in its article, CSRT summaries show most Guantanamo detainees pose terror threat. Seton Hall (Denbeaux) v. West Point's Combating Terrorism Center, on review of the same data. Both views play into the upcoming court cases that involve the CSRT due process dispute.

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There is a minor Senate-floor kerfluffle where Senator Vitter is accused of breaking an agreement that affects the order of amendments being taken up. Senators Byrd and Vitter engage in an exchange on Vitter's amendment, whereupon Vitter discloses that he's willing to withdraw his pending amendment, if he is given an opportunity to offer an amendment later. Senator Byrd wants to see the proposed future amendment before agreeing. No resolution by the time the Senate moves on to regular order and Senator Kerry commences droning.

UPDATE @ 14:27

Wow, Rule XVI being asserted right and left! Landrieu's amendment was ruled out on a Rule XVI conclusion (legislation on an appropriations bill), and she wants to talk about it anyway.

UPDATE @ 15:58

Alexander S.Amdt.2405, to make $300,000,000 available for grants to States to carry out the REAL ID Act of 2005, was TABLED on a 48 - 46 vote.

I don't like the proposed amendment, mostly because I don't like the REAL ID Act. Not that it matters, at some point in my lifetime, I won't be at all surprised (corralled, yes; surprised, no) to see mandatory federal permission for taking mass transit, working, driving, and purchasing ordinary goods. It'll be for my own protection.

UPDATE @ 18:46

Senator Reid says that the Senate will be in session tonight, until the Homeland Security Appropriations Bill is complete. The Vitter amendment was passed on unanimous consent, and off goes the Senate on a whirlwind of passing whatever they hammered out in the backrooms.

UPDATE @ 19:41

The "debate" items below will be voted on later tonight.

2462 Dole (see "pending" above for purpose) passed on UC
2449 Dole - withdrawn
2481 DeMint (to deny felons employment at ports) - 10 minute debate
2516 Salazar (feelgood amendment that says all borders should be secured) - 10 minute debate
2498 Sanders (to adjust H-2B visa program) - 10 minute debate
2407 Lieberman (to fund interoperable communications systems) - debate

Lieberman's amendment would appropriate this year's allocation of funds that the 9/11 Commission Conference Report authorizes for interoperable communications systems (assuming the conference report passes - which is about as certain as can be)

In fact, the Conference report on H.R.1 (H.R.1 Summary), Implementing 9/11 Commission Recommendations, may also be passed later tonight. In that regard, see also the White House Policy Statement on H.R.1, a 50 kb pdf file from January 9, 2007.

UPDATE @ 20:10

Senator Murray tried to propound a UC request to vote on a stack of amendments starting at 8:30 p.m., but Senator Landrieu insisted that her amendment be added. Senator Murray amended the request to add Landrieu and Coburn/DeMint amendments "to be called up." Senator Kyl indicated that he will raise a Rule XVI objection to the Salazar request, seeing as how a Kyl amendment was removed from consideration on a Rule XVI objection.

Senator Coburn indicated that he will offer the following amendment to every bill. It appears that this amendment will not get a vote, and Senator Coburn talked as though he assumes that it will not get a vote.
2442 Coburn/DeMint (to require competitive bids on projects funded by earmark)

Senator Landrieu called up her amendment, but in contrast with Senator Coburn, I think she'll throw a hissy fit tantrum (she's good at it) if her amendment does not get a vote tonight.
2525 Landrieu (money for the scammers in Louisiana)

UPDATE @ 20:30

Lieberman amendment 2407 (100 million dollars for interoperable communications systems) passed on a voice vote.

UPDATE @ 20:40

Sanders S.Amdt.2498, to prohibit use of funds from this appropriations bill for H-2B enforcement, was PASSED on a [guessed rejection 30 - 61] 51 - 43 vote.

ABG: Another Bad Guess - see below, this passed on a voice vote ... Salazar S.Amdt.2516 was (guess) ruled out of order as legislation on an appropriations bill (Rule XVI). I wonder if Senator Kyl followed through with his objection, and the amendment was ruled in-bounds? No matter, the amendment is feelgood material.

DeMint S.Amdt.2481, to deny felons employment at ports, was PASSED on a 93 - 1 vote.

At 21:16, Coburn S.Amdt.2442 was accepted on a voice vote.

Landrieu rises to object before Murray even gets a UC request propounded. What a crank!

Kyl 2518 then Salazar 2516 passed on a voice vote.

Senator Murry moves for 2419 to be withdrawn, but it wasn't even pending. She expects to be able to list the remaining amendments (being agreed to in backroom deals), and beginning the steps of passing amendments and voting final passage of the bill starting before 10 p.m.

[21:35 - skippage of ten or so amendments passed on voice votes 21:41]

UPDATE @ 21:53

The Senate adopted a Unanimous Consent agreement that the Senate would, following passage of the Homeland Security Appropriations ....

Take up the conference report on H.R.1 with 90 minutes of debate, plus 30 additional minutes for Senator Coburn. Senator DeMint is to offer a motion to recommit, with 20 minutes of debate on that. Following all debate, the Senate would vote on DeMint's motion to recommit, and if it fails, the Senate would vote on passage of the Conference Report on H.R.1, Implementing the Recommendations of the 9/11 Commission.

22:13 - Senator Murry says about 10 more minutes before a final package of amendments is brought to the floor, then a vote on final passage of the Homeland Security Appropriations Bill ("final" as in it will go to conference to be reconciled with the House version, then be back for a vote on the conference report).

UPDATE @ 23:11

H.R.2638 - Department of Homeland Security Appropriations Act, 2008, was PASSED on a [guessed 90 - 3] 89 - 4 vote. Nay votes: Coburn, DeMint, Inhofe, and Voinovich

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See just above for details of UC Agreement pertaining to the conference report on the 9/11 bill. It'll pass. I'm going to watch baseball or something entertaining -- or do some work. Two and a half hours of debate, followed by two votes -- outcome is foregone.

Senator Lieberman changes the UC agreement ever so slightly, to have the vote BEFORE the debate. Now that is pretty cool. Anyway, two votes, first on DeMint's motion to recommit, then on the bill. Senator DeMint notes that the "no felons working in secure areas of ports" rule is not in the conference report, and should be. House and Senate votes on that very point have been overwhelming (93-1 in the Senate, 300+ in the House), yet the provision is not in the conference report.

Easy prediction - it won't be, either. Senator DeMint's motion to recommit will be defeated, the bill will pass.

Senator Lieberman comes up to rebut DeMint by saying the conference report is a compromise. Huh? Both sides passed this overwhelmingly, removing the provision doesn't represent compromise between the two bodies of Congress, some other force, not readily visible, is at work to remove the "no felons in secure areas" provision.

UPDATE @ 23:39

The motion to recommit H.R.1 - Implementing the 9/11 Commission Recommendations Act of 2007, was REJECTED on a [guessed 15 - 75] 26 - 67 vote.

UPDATE @ 23:55

H.R.1 - Implementing the 9/11 Commission Recommendations Act of 2007, was PASSED on a [guessed 90 - 3] 85 - 8 vote. Nay votes: Barasso, Coburn, DeMint, Dole, Enzi, Graham, Inhofe, and Kyl

The Senate will adjourn shortly after the last vote result is announced. The "debate" will be entered from typed materials, and need not be spoken from the floor. The Senate will not be in session on Friday. Bier time!!

Reid asks UC to, on Monday, move to Cal#58, H.R.976, SCHIP. An objection is heard, and Senator Reid moves to take up SCHIP now, then files a cloture motion on the motion to proceed, then withdraws the motion to proceed. The cloture vote on the motion to proceed to SCHIP would be Tuesday morning, if in regular order.

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H/T HowAppealing, Justices rule in favor of jokester dentist is a must read. And in the lead article, this gem of a quote: "An Auburn dentist waited until his assistant was sedated for oral surgery and then put fake boar tusks in her mouth ... The insurer shouldn't have left the dentist, Robert Woo, to save his own bacon because what he did to the woman 'conceivably fell within the policy's broad definition of dentistry'" No, he didn't leave them in -- they were in only long enough to take pictures.

UPDATE @ 23:55

Senator Coburn criticizes that the money allocated from the 9/11 bill is allocated based on political considerations, not on risk. He also says that the Senate has mandated an impossibility, screening 100% of cargo, and as a result, will fail to screen high-risk cargo. He notes (correctly) that the Senate-passed legislation ignores professional and expert advice. Situation normal, Dr. Coburn. Shut up and eat your porridge.

But seriously, a good speech, worth reading. The 9/11 bill does not follow the recommendations of the 9/11 Commission, the bill reflects the Senate exercising crass political calculation over prudent action.

He notes that the Senate is going to make our "black box" budget a mater of public record, a piece of transparency that works against our interest, and then, in contrast, points that the US is paying for radio to be broadcast into Arabic countries, where the broadcasts contain messages against US interests - and the Senate has voted against having transcripts of the translated broadcasts (Radio Farsi, for example) made a matter of public record.

Senator Lieberman strokes Dr. Coburn, and says the Senate is a better place for his presence. The Senate is too good a place for an honest person -- I suggest that Dr. Coburn get out while the getting is good.

00:29 - Senator Lieberman shut down the Senate for the weekend. Schedule for Monday:

2:00 p.m. Monday, morning business until 3:00, then take up the motion to proceed to H.R.976 - the Small Business Tax Relief Act of 2007, then at 5:30 p.m (Monday), conduct the vote on the cloture motion on the motion to proceed.


UPDATE @ July 27

Here is the amendment that Senator Landrieu obtained with her last-minute beg ...

The Senator from Washington [Mrs. Murray], for Ms. Landrieu, proposes an amendment numbered 2527 to amendment No. 2383.

SEC. 536. IN-LIEU CONTRIBUTION.
  The Administrator of the Federal Emergency Management Agency shall authorize a large in-lieu contribution under section 406(c)(1) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172(c)(1)) to the Peebles School in Iberia Parish, Louisiana for damages relating to Hurricane Katrina of 2005 or Hurricane Rita of 2005, notwithstanding section 406(c)(1)(C) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172(c)(1)(C)).

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Senator Grassley posted a good speech on the subject of FDA reorganization.

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On the subject of the Abraham Declaration and related procedural posture in GTMO detainee cases and the efficacy of the CSRT process, H/T to HowAppealing, a New York Times article, Critic and Ex-Boss Testify on Guantánamo Hearings, and an essay at FindLaw, Modest Improvements Cannot Save an Inherently Flawed Process at Guantánamo.

ScotusBlog has a report of new activity in a more obscure detainee case, A new "do-over" detainee case reaches Court, referring to Abdul Hamid Al-Ghizzawi. This is the specific detainee who is the subject of the Abraham Declaration.


UPDATE @ July 28

I was just checking details -- looking for the administration's position on SCHIP, and noticed that H.R.976 (the administration supports this without reservation) isn't SCHIP. The mystery is resolved by taking stock of Senator Reid's plan, which is to use H.R.976 merely as a platform to attach SCHIP as a substitute amendment.

Mr. REID. Mr. President, I ask unanimous consent that on Monday, July 30, following a period of morning business, the Senate proceed to calendar No. 58, H.R. 976, and that once the bill is reported, Senator Baucus be recognized to offer an amendment, which would be the text of the children's health legislation, also known as SCHIP, reported by the Senate Finance Committee.

On searching Statements of Administration Policy for the phrase "schip", one finds a Link to White House Fact Sheet on SCHIP, which says "The President's 2008 Budget proposes to reauthorize SCHIP as well as add funding in order to maintain and strengthen the commitment to providing health insurance to low-income, uninsured children."

In order to get a handle on what sort of disputes might be in the offing, I checked the Senate Finance Committee's Open Executive Session to Consider the "Children's Health Insurance Program (CHIP) Reauthorization Act of 2007", and in particular, Member Statements from Max Baucus and Charles Grassley, only to find agreement. So, digging elsewhere ...

A July 27 "Outlook" article in the Houston Chronicle, Middle class the new 'poor' if SCHIP expanded - Universal health care is the agenda behind the move, points out an issue buried in the financial eligibility line. The debate is phrased in terms of "percent of the federal poverty line." This is a helpful summary of the details ...

Already, on July 19, the Senate Finance Committee voted 17-4 to extend SCHIP eligibility to families making up to three times the poverty line [it is presently set at 200%]. Officials in states such as Connecticut and Maryland, where that's already the cap, or New York, where the cap is four times poverty, could continue to cover better-off children by gaming the system. (Hint: It depends on what the definition of "income" is.)

The current state of the law, in detail, is stated in US Department of Health and Human Services - National SCHIP Policy. Better for casual reading, the Wikipedia summary. For those who want more, not less detail, check SCHIP - Congressional Budget Office Report, May 2007, and other materials located at National Conference of State Legislatures page on SCHIP.

The bill that emerged from the July 19 Senate Finance Committee meeting was placed in the Record on July 26, as S.1893 An original bill to amend title XXI of the Social Security Act to reauthorize the State Children's Health Insurance Program, and for other purposes. Funny, it has no co-sponsor, not even Senator Grassley. A substantial introduction to the bill is printed at Pages S10173 through S10190 in the Record (July 26). It makes a reasonable preview of the grounds of debate.

Seeing as how the people have had federally-funded public health care administered by the states since at least 1997, the only issue, now that we've bought into it in principle, is "how much?"

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