Preview of the Defense Authorization Bill [H.R.1585]

    Not much commentary in this post, it's a preview of what I expect will be a very politically "hot" venue for debate, and a fairly "hot" week of Senate action. First, links to the text of various incarnations of the Defense Authorization Bill, followed by news reports and "from the Record" material as hints regarding the more contentious amendments apt to be brought up for debate and vote, and finally, reference to subjects that operate outside of the Defense Authorization venue.

H.R.1585 - Department of Defense Authorization Act for Fiscal Year 2008
Senate Counterpart Bills
S.1547 - National Defense Authorization Act for Fiscal Year 2008
Military Construction Authorization Act for Fiscal Year 2008
S.1548 - Department of Defense Authorization Act for Fiscal Year 2008

Text of H.R.1585
(Engrossed in House - 1.4 Mb pdf with page numbering)
House Report 110-146 (Main Report - 14.3 Mb pdf : CBO Estimate - 180 kb pdf)
Text of Senate Counterparts
Text of S.1547
(Reported in Senate - 1.1 Mb pdf with page numbering)
Text of S.1548
(Reported in Senate - 860 kb pdf with page numbering)
Senate Report 110-77 (Main Report - 8.4 Mb pdf)
Senate Report 110-125 (Intelligence Committee Addendum - 80 kb pdf - Revamp the CSRT process, removes the part of the bill that restricts the DoD granting of security clearance.)

Legislative Action
Text of Amendments

H.R.1585 Summary of Action

June 28, 2007: S.Amdt.2000
July 9, 2007: S.Amdts. 2003-2024
July 10, 2007: S.Amdts. 2026-2064
July 11, 2007: S.Amdts. 2065-2127, 2130
July 12, 2007: S.Amdts. 2131-2188
July 13, 2007: S.Amdts. 2189-2209

Debate of July 9, 2007: Part I
Debate of July 10, 2007: Part I - Part II - Part III - Part IV
Debate of July 11, 2007: Parts I-III - Part IV
Debate of July 12, 2007: Parts I-II - Part III
Debate of July 13, 2007: Part I - Part II - Part III (Kyl)

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Amendment Possibilities

    The contentious amendments are chiefly in two areas: conduct and wind-down of military action in Iraq, and the broad area of "detainee treatment," encompassing habeas corpus, GTMO, and similar.

    A good historical summary of issues that the House tried to add to H.R.1585, that the White House said it would veto, and the House eventually retracted, in the article: White House Levels Veto Threat Against Defense Authorization
CQ Today - May 16, 2007

    Conventional wisdom regarding the range of Iraq-related amendments is outlined in ...

Senate Democrats unveil new Iraq strategy
By Elana Schor - TheHill.com - June 12, 2007

Senate Democratic leaders late Tuesday unveiled a trio of amendments to the defense authorization bill that represent the majority's next effort to force a turnaround in the Iraq war and isolate the White House from its Republican supporters. ...

The first amendment, crafted chiefly by Sen. Carl Levin (D-Mich.), mandates the start of a troop withdrawal from Iraq within 120 days of passage. The second amendment, crafted chiefly by Sen. Jim Webb (D-Va.), would set strong troop readiness standards and ensure a minimum period between Iraq deployments.

The third amendment, a hotly sought goal of Reid's that was crafted chiefly by Sen. Russ Feingold (D-Wis.), would block spending on a future military presence in Iraq after April 2008, save for troops on counter-terrorism and training missions.

A possible fourth vote could come on revoking Congress's original 2002 war authorization, a tactic favored by many but agreed upon by few. Sen. Joseph Biden (D-Del.) has suggested "de-authorization" followed by a new, targeted mission, while Sens. Hillary Rodham Clinton (D-N.Y.) and Robert Byrd (D-W.Va.) have suggested forcing President Bush to seek a new authorization from Congress.

    Senator Webb provided an outline of the substance of his troop rotation amendment ...

Senator Webb's amendment to the National Defense Authorization Act
The Richmond Democrat - July 02, 2007

It's basically going to say that on the active side, however long an individual has been deployed, they have to be allowed to stay home at least that long before you send them back. If you're Guard and Reserve, however long you've been deployed, you have to be able to have been at home at least three times that length before you're sent back, because of the nature of the Guard and Reserve.

    Nobody knows whether or not the Dodd amendment will make an appearance, but this article illustrates a part of the amendment Iraq menu that Senator Reid will have to pick from.

Dodd to Outline Next Steps in Fight to End War in Iraq
May 30, 2007

Senator and Presidential candidate Chris Dodd today will announce his plans to continue the fight to bring an end to the Bush Administration's failed policy in Iraq. Dodd will hold a live chat at the popular blog FireDogLake today at 5 p.m. ET where he will announce plans to introduce an amendment to the upcoming Defense Authorization bill that would bring an end to American involvement in Iraq's civil war.

"The current policy in Iraq has left us less secure and left our standing in the world in tatters. That is why we have to continue the fight to change course," said Dodd. "The Dodd Amendment will improve accountability, provide a timetable for the Iraqi government to get its house in order, and safely and responsibly redeploy our troops and bring them home. Now is the time to responsibly bring an end to our involvement in another country's civil war while rebuilding our Reserve and Guard units."

The Dodd Amendment will:

• Immediately begin redeployment of U.S. combat troops. Set a firm deadline for completing redeployment by March 31, 2008.
• Provide no additional funding for combat operations after March 31, 2008.
• Hold the Bush Administration accountable during the redeployment period by requiring the Secretary of Defense to regularly report to Congress on the drawdown of forces.
• Institute measures that would make funding within the redeployment period contingent on the progress of phased redeployment.
• Restore the readiness of the military, Reserves and National Guard by transferring portions of monies that would have been available for combat activities.

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    Besides Iraq-related amendments, the Senate will almost certainly debate detention and prosecution of actors who are outside of direct military action, and are also outside of access to the civilian court apparatus. The Military Commissions Act (MCA) and Detainee Treatment Act (DTA) were hot debates when they came up in their own right, and are going to be even hotter debates now, with SCOTUS and military judge action thrown into the mix.

Senate committee supports restoring habeas rights to Guantanamo detainees
JURIST - June 7, 2007

The Habeas Corpus Restoration Act of 2007, sponsored by Sen. Patrick Leahy (D-VT) and Sen. Arlen Specter (R-PA), would allow Guantanamo detainees to challenge their detention in US federal courts for the first time since the Military Commissions Act of 2006 (S.3960 in 109th Congress) revoked that right. The bill, passed in committee without debate, was unanimously supported by Committee Democrats; Specter was its only Republican supporter. It is expected to be attached next month as an amendment to the National Defense Authorization Act for 2008

    As noted a couple weeks ago, repeated here in case others are inclined to fact find for themselves, Read S.185 - Habeas Corpus Restoration Act of 2007, as well as the accompanying Senate Report 110-90.

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    Miscellaneous chatter about the Defense Authorization Bill includes Feinstein, Harkin aim to shut Guantanamo ... (TheHill.com - June 21, 2007). The GTMO debate is elevated far above its importance, in my opinion. I thought the government argument of "territoriality is the factor that permits military detention" was weak, and ultimately unnecessarily stifling to the exercise of military power against threats to the established order. A president has the power to use military force and apply military detention anywhere in the world, including in the United States, to protect national security. See Padilla and al Marri cases for legal precedent. The sticky point is drawing the line between "national security" and "ordinary thuggery." I'm thinking about the DC snipers here - and no doubt a significant number of other bad actors presently on US soil.

    Earmark reform may also make an appearance in the venue of the Defense Authorization Bill. See Senate Panel Agrees to Disclose Earmarks in Defense Bill (The National Journal's CongressDaily - May 29, 2007). Click through to Armed Services Language Strikes Blow to Earmark Reform for an interesting detail relating to the language of the earmark reform promoted by Senators McCain and McCaskill, as that language pertains to the C-17 aircraft program.

Republicans For Change of Course in Iraq

    Which Republican Senators are likely to "side with the Democrats?" Naturally, that will depend on the specific item they are voting on. The senators recently named as weak sisters are Lugar, Voinovich, Domenici, and Warner; but there are a fair number of others.

June 21 - Presidential Vetos [Mr. REID] That is why we have fought so hard, as Democrats, and will continue to fight, to change the course in Iraq. We need a new mission, one that is aligned with our strategic interests. We need to begin redeploying our troops from Iraq so we can reduce our large combat footprint and extricate forces from this Civil War.

We need more than two Republicans to help us. We have had two, and I so appreciate that. They made it so we were able to pass a bill, send it to the President, and he vetoed it. We need more.

I have signaled to my colleagues that the Defense authorization bill will be coming up shortly. We intend to wage our battle on Iraq, changing the course of the war in Iraq.

    Senator Reid is referring to Senators Gordon Smith (OR) and Charles Hagel (NE) and their April 26, 2007 Aye votes in passing H.R.1591, the Iraq Supplemental Appropriations Bill that included "Iraq pull out" language. In addition to those two senators, keep an eye on the GOP senators who have recently expressed reservations in one form or another.

    See the May 24, 2007 Debate on Iraq - GOP Senators co-sponsor a bill (S.1545 - Text of Bill) to implement Iraq Study Group recommendations. GOP co-sponsors as of May 24 were Lamar Alexander (TN), Judd Gregg (NH), and Bob Bennett (UT). The list of GOP co-sponsors as of June 5 included, in addition, Susan Collins (ME) and John Sununu (NH), and on June 27, Pete Domenici (NM) signed on. (List of co-sponsors)

    Richard Lugar (IN) spoke out on the subject of Iraq on June 25, but hasn't signed on to S.1545. My sense is he thinks S.1545 does not go far enough. George Voinovich (OH) is another senator who has called for US troops to start coming home.

    At the DailyKos (google took me there - I forget what the search terms were), in The Big GOP "Break" with Bush, mcjoan writes:

As always, the devil is in the details. The Salazar bill he's signing onto, the Iraq Study Group Implementation Act is little more than a feel-good facade for senators who want to say they've done something to stand up to Bush on Iraq without actually really doing anything to change our Iraq policy. The bill would "create the conditions" for withdrawal, but doesn't mandate withdrawal and would not achieve what the country demands--bringing out troops home.

    I think that's an accurate assessment of S.1545. The bulk of the bill is "Sense of Congress" resolutions, and what substantive language it contains is in the nature of policy statements, not implementation means.

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    For a change of pace (still in the nature of a preview of coming attractions) ...

What Would Happen if the Administration Continues to Defy the Subpoenas?
Marty Lederman - July 6, 2007

Senator Leahy and Rep. Conyers have informed the White House Counsel that if there is no compliance by this coming Monday at 10:00 a.m., the legislative chambers will rule on the privilege claims "and consider whether the White House is in contempt of Congress."

And what then?

    Marty goes on to describe the various paths that a Congressional/Executive confrontation can take. It's a good read in advance of the almost certain showdown over executive privilege on the subject of replacement of US Attorneys, and the assertion of "state secret" (national security) on the subject of the Terrorist Surveillance Program. "Terrorist Surveillance" seems a silly undertaking though -- if we know who the terrorists are, why merely surveil them?

White House Will Deny New Request In Attorneys Probe
Peter Baker - Washington Post Staff Writer - Sunday, July 8, 2007; Page A03

Senate and House committees have directed President Bush to provide by tomorrow a detailed justification of his executive privilege claims and a full accounting of the documents he is withholding. But White House counsel Fred F. Fielding plans to tell lawmakers that he has already provided the legal basis for the claims and will not provide a log of the documents, the sources said.

    An interesting position - given that on March 20, Fielding offered to have the involved people give interviews behind closed doors without an oath or transcript, and to also provide copies of communications between the White House and Department of Justice concerning the request for resignations of the U.S. Attorneys in question, as well as copies of communications (on the same subject) between White House staff and third parties, including Members of Congress of their staffs on the subject. Fielding reiterated that March 20 offer in his June 28 assertion of executive privilege regarding documents (900 kb pdf). Leahy and Conyers replied on June 29 (link includes background and the legal counterargument).

    Under the constitution, Congress could vest the power of nomination and appointment of US Attorneys with the Article III courts, rather than with the president; making it arguable whether or not communications regarding the appointment of US Attorneys "implicates a 'quintessential and nondelegable Presidential power,'" such as deliberations related to decisions to grant clemency. Clemency is exclusively a presidential power, under the constitution -- Congress could not vest clemency power elsewhere.

    At any rate, the arguments aren't as simple as either side is portraying it - and Solicitor General/ Acting AG Clement's intimation of a false parallel (appointment of US Attorneys is a power, like clemency, constitutionally granted to the president) may fool the public, but it's unlikely to make a winning impression on a court. In fact, if that's his best argument (or if his argument depends on finding that), he'll lose.

    The power to appoint US Attorneys is granted to the president by a Congressional statute, 28 USC 541. Check it out.

    I'm not of the mind that Congress has a great argument either, and it would be foolish to think that the Congressional subpoenas on the subject of US Attorneys aren't motivated primarily by politics. While Congress could, in theory, vest the appointment of US Attorneys in the courts, I'm sure it has no plan to do so.

    And what of the proposition that the president has delegated the nomination, replacement, appointment power of US Attorneys too far down the food chain -- a loose parallel being the argument that the appointment of Fitzgerald is defective because it runs afoul of the constitution, Congressional statutory requirements, or both. Does the public have a legitimate interest in obtaining accountability within the executive branch?

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    Votes starting at 5:30 p.m. on Monday, July 9, 2007: In executive session, dispense with ALL of the judicial nominees currently on the executive calendar. The nominees to federal District Courts are: O'Grady (ED Va.), Maloney (WD Mi.), Neff (WD Mi.), and Jonker (WD Mi.). A number of judicial nominees remain bottled up in the Judiciary Committee, and the White House has a record number of judicial vacancies with no pending nominee.

    Thanks to the browsing by howappealing, an editorial in the Bristol Herald Courier: Time to act on 4th Circuit slots -- "Almost a third of the seats on the U.S. 4th Circuit Court of Appeals are empty - a testament to the deplorable politicization of the judicial-selection process. ... The 4th Circuit needs judges now."

UPDATE @ 15:01

    Not that I assume reports of the exchange on CNN Late Edition are accurate (I'm waiting for the transcript), some people wonder why Senator Specter has expressed an interest to hear from Special Counsel Patrick Fitzgerald in the wake of the Libby commutation. Specter's stated reason, "I still haven't figured out what that case is all about," isn't all that hard to decipher.

Three word hint: "Statutory Press Shield"

    The Democrats on the Judiciary Committee have additional motives, primarily being to enhance the impression that the White House is hiding something.

    Picked up from Volokh, How Bush Decided on the Libby Commutation ...

Inside Bush's decision to give Scooter Libby a pass
By Michael Isikoff - Newsweek - July 16, 2007 Issue

Uncharacteristically, Bush himself delved into the details. He was especially keen to know if there was compelling evidence that might contradict the jury's verdict that Libby had lied to a federal grand jury about when--and from whom--he learned the identity of Valerie Plame Wilson, wife of Iraq War critic Joe Wilson. But Fielding, one of the advisers tells NEWSWEEK, reluctantly concluded that the jury had reached a reasonable verdict: the evidence was strong that Libby testified falsely about his role in the leak.

    I predict the comments on the Volokh post will be interesting and, after a few hours, become heated around the point of a White House counsel (Fielding) concluding that the jury had reached a reasonable verdict. President Bush didn't even go that far, all he would give the jury was "respect." Well, I respect that Senator Leahy is chairman of the Senate Judiciary Committee too, with certain powers. That doesn't mean I agree with anything he says or does.

    If Isikoff got it right, I agree with Fielding; I think the Libby jury reached a reasonable verdict to the legal standard of beyond a reasonable doubt. I say that as one who followed the case fairly closely; and for what it's worth, I reached my conclusion independently.

    [July 10 addition] Patterico picks up the same point I did (that Fielding reached that the conclusion of guilt was reasonable, based on evidence presented at trial) in Fred Fielding: Liberal.

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Transcript - CNN Late Edition - July 8, 2007 has comments from Specter on the Iraq war, that to me, overshadow anything he had to say about Scooter Libby (press shield) or Patrick Fitzgerald.

BLITZER: What about that, Senator Specter? You for some time have suggested this is a civil war that's happening in Iraq. Do you agree with Senator Leahy?

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Well, there is no doubt there is a civil war. And had we known Saddam did not have weapons of mass destruction, we wouldn't have gone in. And now we don't want to leave Iraq in a state of total disorder.

I'm going to be listening very closely to the debate next week. I'm going to separate presidential politics from the military evaluation. We have given General Petraeus until September to give us a report.

We have to bear in mind our decision on funding is not going to be in the next week or two. That's going to come in September, when we take up the Department of Defense appropriations bill. But I'm going to be listening very closely. When Senator Lugar speaks, everybody listens.

BLITZER: On that point, Senator Specter, Senator Lugar, Senator Voinovich, Senator Domenici, all Republicans, Senator Hagel for some time now expressed their deep concern, dissenting from this new strategy. Do you put yourself in that category?

SPECTER: Well, deep concern? absolutely. Putting a deadline date with a time when the enemy, the insurgents just have to wait us out depends upon the evolving picture. I think General Lynch has it exactly right when he says a lot of factors are changing.

I want to hear the debate. I want to hear the up-to-date military assessments. These issues are much too important to make a judgment on a Sunday talk show, important as yours is, Wolf.

    As for my speculation as to Specter's motive for agreeing with Senator Schumer in wanting to have Patrick Fitzgerald testify before the Judiciary Committee, well, here is what he said on the subject, you decide if my speculation was close ...

SPECTER: Reluctant as I am to agree with Senator Schumer, I think he's right. And I'll tell you exactly why. As a former prosecutor, I don't have any brief (ph) for perjury and obstruction of justice, but I still haven't figured out what that case is all about.

Mr. Fitzgerald himself took out of the case the outing of Valerie Plame as a covert agent. We knew that the leak was Armitage long before Libby was ever called as a witness. We have Judith Miller kept in jail for 85 days. I visited her in the jail on the issue of reporter's privilege. That court case cost several million dollars to prosecute.

And there are a lot of ramifications that I think we ought to go into. Why were they pursuing the matter long after there was no underlying crime on the outing of the CIA agent? Why were they pursuing it after we knew who the leaker was?

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UPDATE @ July 9

    More on the lack of nominees for vacancies on the 4th Circuit, another hat tip to howappealing for this link to an article at LegalTimes.com, Conservatives Fear 4th Circuit Slipping Away - Inaction from the White House and gridlock on the Hill leave four slots sitting vacant. The 4th Circuit has consistently delivered government-favorable rulings in terrorism cases.

    Haynes (blocked in Committee by McCain and Graham) and Boyle (out of Committee for months, but Senator Frist never moved the Senate into executive session to vote on the nomination) were nominated for seats on the 4th Circuit - but President Bush withdrew those nominations on January 7, 2007. So much for the president's nominees being entitled to an up or down vote. I guess it's just the Senate's nominees who are entitled to consideration.

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Communication to Congress on President's Assertion of Executive Privilege - July 9, 2007.

On to the next stage. Congress made a threat to enforce its subpoenas, and the President has responded, "bring it on."

UPDATE @ 14:23

During a press conference with Senators Reid and Webb, Senator Reid noted that Webb's troop deployment rotation amendment is likely to be introduced today. Senator Reid will seek unanimous consent to vote on the Webb amendment tomorrow, and he telegraphs that he expects GOP objection. Goodie! Another series of cloture motions! The Webb amendment has one Republican co-sponsor. I think I heard Senator Hagel's named mentioned as being that co-sponsor.

Senator Reid says the Levin/Reed amendment will be introduced after the Webb amendment.

On the floor of the Senate, Senator Reid notes the Senate workload and invokes the possibility of impinging on the traditional August recess. Give me a break. He also reiterates his charge that the relatively large number of cloture motions filed is an artifact of GOP objection to proceed to various bills, amendments and votes. Intuitively, I doubt this - see the number of cloture motions (not the underlying matter) passed by a wide margin.

1. Motion to Proceed to H.R.6 (Energy) (vote 208) : 91-0
2. On Reid Amdt.1123 (Iraq supplemental) (vote 171) : 94-1
3. On Cochran Amdt.1135 (Iraq issue in Water Bill) (vote 169) : 87-9
4. Motion to Proceed to H.R.1495 (Water) (vote 162) : 89-7
5. On Committee Substitute to S.1082 (FDA) (vote 152) : 82-8
6. Motion to Proceed to S.378 (Court Security) (vote 133) : 93-3
7. Motion to Proceed to S.372 (Intel Authorization) (vote 129) : 94-3
8. On H.R. 1591 (emergency supplemental appropriations) (vote 117) : 97-0
9. Motion to Proceed to S.J.Res.9 (Iraq) (vote 74) : 89-9
10. Motion to Proceed to S.4 (9/11 Comm'n) (vote 53) : 97-0
11. On H.R.2 (minimum wage) (vote 39) : 88-8
12. On Baucus Amdt.100 (minimum wage) (vote 34) : 87-10
13. On Reid Amdt.4 (lobbying) (vote 12) : 95-2

"GI Bill of Rights"? It was the "GI Bill" that granted federal money for students who had served in the military. Senator Reid goes on to blame the GOP for obstructing the Ethics/Lobbying bill (S.1) from going to conference - blatantly false as the objection to going to conference will be withdrawn if Senator Reid agrees to retain the Senate-rule portion that was passed by the Senate on a 98-0 vote.

Senator McConnell rebuts Reid's "number of cloture votes" complaint, by asserting that the Democrats insist on limited amendments, which results in a GOP objection. Senator McConnell is fine with working through the August recess, and is worried that no appropriations bills have been passed (the 2nd session of the 109th Congress passed ZERO, for what it's worth). He places the onus for objecting to the Lobbying bill on DeMint's shoulders (not directly by name).

On the subject of the Defense Authorization Bill, the Republicans seek an open debate, and welcome the debate on where to go from here on Iraq. A couple of words of caution, Republicans will insist on being able to introduce their own amendments (he reiterates the assertion that cloture is being used to truncate debate). He says amendments will be insisted on with regard to handling terrorists (a reference to habeas corpus, I think), and in general, to provide alternatives to Democrat-proposed amendments.

UPDATE @ 14:32

The 9/11 bill is on its way to conference. I'll have to read the Record and refamiliarize myself with the details (I recall the TSA "collective bargaining" point was one issue) to see which side blinked, but I think the Democrats blinked.

UPDATE @ 15:00

Senator DeMint is making mincemeat of the Democrats' contention that the Republicans are holding up taking the lobbying/ethics reform bill to conference. The amendment that DeMint proposed, with Senator Durbin, was, after being passed 98-0, objected to by Senator Durbin. Now that's funny.

Senator DeMint makes the same unanimous request consent he made a couple weeks ago, and is again met with objection by Senator Durbin. Senator Durbin goes on to muddy the water, without addressing the arguments of Senator DeMint.

Darn fool [Durbin] almost propounded exactly the same UC request that DeMint made. Now THAT would really have been funny.

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I ran into this while cruising around the web ... A Handy Guide To All The Democrats' Plans To End Iraq War by Spencer Ackerman at TPMCafe. It and the comments following are worth a read. Pay attention to the sentiment toward S.1545, Salazar's Iraq Study Group bill.

UPDATE @ 15:15

S.Amdt.2011 is offered as a substitute amendment for the Defense Authorization Bill. Any action on the bill will be in the nature of amending the substitute; and reference to the text of the bill is now useful only as gaining familiarity, and not as "detail checking."

Webb's amendment is S.Amdt.2012.

UPDATE @ 16:15

Scooter Libby, Patrick Fitzgerald and Fred Fielding of the White House have filed position statements with the District Court, regarding the applicability of supervised release in light of President Bush's grant of commutation of prison sentence. All three reach the same conclusion, and in addition to agreeing with the controlling rationale offered by Fielding and Libby, Fitzgerald offers two additional rationales to the Court.

From ScotusBlog, All sides agree: Libby must remain supervised, a more detailed summary of the arguments and conclusion, including links to all of the filings.

UPDATE @ 17:25

A lengthy exchange involving Senators Leahy and Specter on the subject of Congressional subpoena vs. an assertion of executive privilege. Senator Specter advocates getting the offered testimony now, and rejecting any condition that implies Congress has thereby exercised and exhausted its subpoena power.

UPDATE @ 17:38

Senator Brownback objects to the nomination of Neff to a District Court seat. The fact that Neff has presided over a same-sex marriage ceremony caused Brownback to question Neff's position as to what federal law should be on the subject; and her answers to his questions cause him to doubt she, as a judge, would accept her role to follow law, rather she would be inclined to make it.

I think Brownback has the better part of this argument, but Neff will be confirmed by a wide margin.

UPDATE @ 18:37

Janet T. Neff was CONFIRMED as a District Court judge for the Western District of Michigan on a 83 - 4 vote.
Nay votes: Brownback, Bunning, Kyl, and Martinez

UPDATE @ 19:10

Senators Reid and McConnell negotiating how to proceed with the bill, in the wake of Senator Reid filing threatening to file a cloture motion on the Webb amendment. Senator McConnell suggests that the bill would move along quicker if Democrats and Republicans would agree on side-by-side amendments (or one-for-one, if the subject matter isn't parallel) instead of limiting amendments to those proposed by Democrats, with votes being "forced" through the use of cloture motions.

Senate adjourned at 19:14, until 10:00 a.m. Tuesday. About two weeks worth of debate on the Defense Authorization bill.

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UPDATE @ July 10

The 9/11 bill went to conference encumbered with a unanimous consent agreement that results in the TSA collective bargaining provisions being absent from whatever conference report emerges. Senator Coburn's objection to going to conference, relating to oversight for government grants to private companies and states, has been set aside.

Pending:

• Levin No. 2011, in the nature of a substitute.
• Webb No. 2012 (to Amendment No. 2011), to specify minimum periods between deployment of units and members of the Armed Forces for Operation Iraqi Freedom and Operation Enduring Freedom.
• Nelson (FL) No. 2013 (to Amendment No. 2012), to change the enactment date. [This is a second degree amendment that is used to temporarily keep the amendment tree full]

A unanimous-consent agreement was reached providing that if a cloture motion is filed on Tuesday, July 10, 2007, on Webb Amendment No. 2012 (listed above), the cloture vote occur on Wednesday, July 11, 2007.

Senator Reid hints that the GOP will agree to voting on the Webb amendment without a need to file a cloture motion, provided the GOP is permitted a side-by-side alternative, which, according to Senator McConnell, will be offered by Senator Graham.

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Notice the presidential waiver provision in the Webb amendment, the rotation requirements are waived "if the President certifies to Congress that the deployment of the unit or member is necessary to meet an operational emergency posing a threat to vital national security interests of the United States."

There are a couple of terms of art there that I'm not familiar with, "operational emergency," and "threat to vital national security interests." I wonder how many of the troops currently deployed in Iraq meet that statutory definition. For hot issues, it's typical to find critical difference (where the conclusions are opposite) between applying common shorthand (in this case, that the Iraq war is vital to the security of the United States) and applying the definition recited in statutes.

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And as long as I'm preoccupied with parsing exercises ...

After Bureau Sent Reports, Attorney General Said He Knew of No Wrongdoing
John Solomon - Washington Post - July 10, 2007; Page A01

As he sought to renew the USA Patriot Act two years ago, Attorney General Alberto R. Gonzales assured lawmakers that the FBI had not abused its potent new terrorism-fighting powers. "There has not been one verified case of civil liberties abuse," Gonzales told senators on April 27, 2005.

Six days earlier, the FBI sent Gonzales a copy of a report that said its agents had obtained personal information that they were not entitled to have. It was one of at least half a dozen reports of legal or procedural violations that Gonzales received in the three months before he made his statement to the Senate intelligence committee, according to internal FBI documents released under the Freedom of Information Act.

Testing the veracity of Gonzales assurances depends on parsing the phrase "verified case," as well as defining the degree of conduct that constitutes reaching the threshold of "civil liberties abuse." [I missed another way to parse "abuse," that being whether or not the violation was wilful.]

The article describes a number of violations of law and regulation, but is undertaking a thorough surveillance of a person, without having any legal basis for undertaking that surveillance, a "civil rights abuse?" Is it even possible to commit a civil rights abuse with a National Security Letter (NSL)? Aside from peeping toms, can privacy even be violated when the target is unaware? If a tree falls in the forest ... if you aren't doing anything wrong ... and all that.

[Orin Kerr at Volokh has more at Washington Post's Weak Case That Gonzales Lied]

[On July 15, the Washington post comes back with In Intelligence World, A Mute Watchdog ... "Gonzales wrote that he did not consider the conduct in those reports to be abuses because the violations involved mistakes, not deliberate misconduct."]

UPDATE @ 12:15

Good article in The American Spectator, Standing Firm on the Surge, probing a range of military and political futures on US involvement in Iraq.

And yesterday's collection included A Taste of Their Medicine, which concludes, "If our medical schools are the updated version of the pre-9/11 flight schools, we need to beware. Look out for the student who wants to learn how to open people up but not how to close them."

Heh ... listening to Senator Boxer's speech, and she is upset that Iraqi civilians are being encouraged to arm themselves for self defense against insurgents. "What kind of country is that, where the people aren't rendered dependent on the government for protection?"

At the conclusion of Boxer's speech, the public gallery in the Senate erupted in applause. That is a rare event, and was almost certainly an organized event.

UPDATE @ 14:40

Senator Leahy attempted to introduce an amendment (the Habeas Corpus Restoration Act of 2007), but was met with objection from Senator DeMint. The text of the amendment, S.Amdt.2022, is actually available. In addition to putting the Title 28 statutory habeas provision to where it was before last year, it would also modify Title 10 in such a way that appears, at a glance, to prevent military commission action from bleeding over into civilian courts.

950j(b) Limited Review of Military Commission Procedures and Actions Except as otherwise provided in this chapter [Section 950j of title 10] or in section 2241 of title 28 or any other habeas corpus provision, and notwithstanding any other provision of law, no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of the enactment of the Military Commissions Act of 2006, relating to the prosecution, trial, or judgment of a military commission under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

I'm not versed in the relationship between courts established under Title 10 (Courts martial) and courts established under Title 28 (the federal district and circuit court apparatus), but a google search for "10 usc 950" (using the quotation marks) gives only one hit, to a May 31, 2007 piece at ScotusBlog which says ...

The Circuit Court's only explanation of its finding that it had no jurisdiction to delay a war crimes proceeding was a citation to 10 U.S.C. 950-j-b. That is the provision in the new Military Commissions Act passed by Congress last fall specifying that no federal court (including the Supreme Court) may consider any claim about "the prosecution, trial, or judgment of a military commission" -- with the one exception that the D.C. Circuit may review an actual conviction that results.

Senator Specter notes the recent SCOTUS decision to rehear two detainee cases (it IS a big event), and speculates that the Abraham Declaration goaded one or two SCOTUS Justices into rehearing. His motivation in pushing this amendment seems as much to be to avoid a smackdown by SCOTUS against Congress. Now, to me, this is funny (as in Specter is being a hypocrite) coming from a Senator who professes that Congress is RIGHT to punt difficult decisions to the Courts.

UPDATE @ 16:10

Senator McCain is hinting at the possibility that the Defense Authorization Bill will fail to pass, because the Senate will bog down over arguments about Iraq amendments (in particular, he points at Democrat's insistence to fold Iraq policy into this bill, and the Republicans will insist on cloture votes for these amendments) instead of addressing Defense Authorization without reference to Iraq policy, or, if Iraq policy must be debated, to give the Republicans an opportunity to debate and vote on competing alternatives to each of the Democrat-offered amendments.

Senator Levin expresses that he is willing to work on time agreements on various amendments, including Republican amendments. He also says that this bill is a better place to have a policy debate than at the Appropriations stage. He characterizes the "wait for the September report" argument as a delaying tactic.

UPDATE @ 19:10

Senator Reid must be feeling some heat on getting the Ethics and Lobbying bill into conference, as, rather than quietly "waiting for the Republicans to budge," he's arguing that the Democrats have no intention of preventing an already-passed Senate Rule from being formally adopted -- but the Democrats have also formally objected each time a request has been made to adopt that Senate Rule.

If it's true that the Senate is already abiding by the proposed rule, then the Democrats have no basis for their objection. Ergo, it's not true that the Senate is already abiding by the proposed rule. Senator Reid says he doesn't want to file a cloture motion to move this to conference -- I wonder why not?

Senator Durbin falsifies the function of cloture as being a slowing tactic - actually, the slowing tactic is to require unanimous consent before proceeding to a vote, and cloture is a way to cut that ordinary procedure short by finding 60 senators who are ready to vote or proceed - over the objection of as many as 40 senators who want to move more slowly.

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UPDATE @ July 11

Pending (unchanged from July 10):

• Levin No. 2011, in the nature of a substitute.
• Webb No. 2012 (to Amendment No. 2011), to specify minimum periods between deployment of units and members of the Armed Forces for Operation Iraqi Freedom and Operation Enduring Freedom.
• Nelson (FL) No. 2013 (to Amendment No. 2012), to change the enactment date. [This is a second degree amendment that is used to temporarily keep the amendment tree full]

A motion was entered to close further debate (this refers to a cloture motion) on Webb Amendment No. 2012 ... a vote on cloture will occur [at 11:30 a.m.] on Wednesday, July 11, 2007.

On this vote, it will be the Republicans who are abusing cloture in order to kill the Webb amendment. Many who vote against cloture (nominally meant to indicate that they are not yet ready to vote) are firmly against the Webb amendment, and would vote against it if the amendment itself was subjected to a vote.

A common arrangement under a "dueling amendments" scenario is that the Senate agrees to a 60 vote hurdle (not via cloture) to pass either amendment. That arrangement was rejected by Senator Reid yesterday ...

... a problem has developed. We do have a side by side from Senator Graham, but what I didn't understand is that there would be a requirement of 60 votes on Senator Webb's amendment and Senator Graham's amendment. I just don't think it is appropriate that there be a filibuster on this amendment, and that is what it is.

Senator Reid went on to offer side-by-side straight up-or-down (majority) votes on dueling Webb and Graham amendments. Senator McConnell's objection was prefaced with a brief description of why, as a parliamentary matter (taking cloture abuse as a given), reaching mutual agreement to set 60 vote thresholds on the underlying matter is less time consuming than undertaking a series of cloture motions ...

What we have frequently done is simply negotiated an agreement to have the 60 votes we know we are going to have anyway, and the reason for that is--well, there are several reasons. No. 1, if a cloture vote were invoked, it would further delay consideration of the bill because potentially 30 more hours could be used postcloture on an amendment. So what we have done, in a rational response to the nature of the Senate in this era, is to negotiate 60-vote votes.

We are perfectly happy to enter into an agreement, as I suggested yesterday, for a vote on the Webb amendment and the alternative that we would have, the Graham amendment, by consent, two 60-vote requirements. That is not unusual in the Senate; it is just common practice in the Senate, certainly for as long as I have been here. So, therefore, I object. [to the proposed consent agreement for majority votes on dueling Webb and Graham amendments]

This development, moving away from mutual agreement for 60 votes on dueling underlying amendments for the politically-charged issues, and into the use of the cloture process, is what prompted Senator McCain to speculate the Defense Authorization Bill as a whole will be tied up in senatorial gridlock, and will be dropped from consideration (just as the immigration bill as) rather than being voted on.

Based on Senator Reid's rejection of 60 vote side-by-side votes, I predict that the cloture motion to limit debate on the Webb amendment will be rejected. As majority leader, he is setting up a situation where each senator has to choose between the options of "gridlock" vs. "majority rule" on an issue-by-issue basis.

---===---

Government defends war crimes case; Court rules issued at ScotusBlog, with a comment by Howard Gilbert, covers the appeal by the government of military judge Brownback's dismissal of charges against Khadr, for want of jurisdiction. Mr. Gilbert's comment makes the Geneva Convention argument counterpoint to the government's brief, although this is not the only counterpoint I expect to see raised in the appeal, the other counterpoint being statutory construction.

UPDATE @ 12:01

As predicted ...

The cloture motion to limit debate on Webb S.Amdt.2012, to mandate troop rotation and readiness, was REJECTED on a 56 - 41 vote.
GOP Aye votes: Coleman, Collins, Hagel, Smith, Snowe, Sununu, Warner

Senator Webb withdrew his amendment! That is not the typical reaction to a failure to invoke cloture, but it is a practical decision in this case, and is the reaction that would have happened if an agreement had been reached to have side-by-side amendments with 60 vote thresholds.

Next to be debated will be Levin amendment 2087, with Reid's second degree amendment 2088. Reid's second degree amendment is a non-substantive tree-filler. The Levin amendment will be countered with a Republican counterpart.

UPDATE @ 15:59

The Senate will vote on Senator Lieberman's "We know what Iran is doing" S.Amdt.2072 (as modified) at 4:10 p.m. Senators McCain and Levin are co-sponsors, this amendment will almost certainly pass unanimously. It does not call for any military action.

UPDATE @ 16:38

I had guessed 95-0 with the vote concluding at 16:43. Not bad for a guess.

Lieberman S.Amdt.2072, to require a report on Iran's training of actors to be used against US troops in Iraq, was PASSED on a 97 - 0 vote.

UPDATE @ 16:52

Hagel S.Amdt.2032 is made the pending business, and it resembles, somewhat, a more radical version of the Webb amendment in that it prescribes the maximum duration of a tour of duty for troops involved in Iraq and Afghanistan, and omits the direct presidential waiver. Tongue in cheek, sort of, I wonder if this qualifies as a Republican amendment. In seriousness, I wonder how many of this type of amendment will be offered and swatted down.

I see the value of having a "rules based" deployment and rotation policy - some sort of foreseeability in that regard is a valuable recruiting tool. To the extent the government as a whole (Congress, plus the Pentagon) is perceived as reneging on its own rules without good reason, future recruiting "promises" are reasonably taken as false promises. I think the nancy-boys in Congress are prematurely poking their nose into the Pentagon's reneging on its own rotation rules.

UPDATE @ 17:38

Senator Levin propounded a typical back-to-back amendment unanimous consent agreement, with 60 votes required to pass, and if 60 votes aren't obtained, the amendment be withdrawn. The two back to back amendments next up are the Graham/Kyl (number uncertain to me) vs. Hagel S.Amdt.2032 - with voting on the two to occur starting at 6:20 p.m. Following those votes, a vote on a McCain amendment.

Heheheh - Senator Graham's "Sense of the Senate" resolution on troop rotation (the alternative to Hagel's amendment) sets out a goal of maximum tour of duty of 15 months, while the Pentagon's stated goal is 12 months. [June 12 correction - that per Senator Levin's characterization - but reading the text of S.Amdt.2078 as modified (at pages S9006,7 of the Record), Graham's amendment is silent as to the duration of a tour. The amendment specifies a 12 month dwell time between deployments.]

I'm thinking Hagel's amendment goes down on a 48-48 vote, and mini-McCain's amendment goes down on a 55-41 vote, each amendment failing to obtain the 60 votes needed to pass.

UPDATE @ 18:44

Hagel S.Amdt.2032, to mandate maximum tour of duty with presidential waiver upon consultation with Congress, was REJECTED on a 52 - 45 vote. (60 votes needed to pass, by UC agreement)
GOP Aye votes: Hagel, Smith and Snowe

More like a redo of the vote on the Webb amendment than a 48-48 split, I suppose "why not," since the senators knew it wouldn't pass, making this vote into a freebie that can be spun as "for the troops." Coleman, Collins, Sununu and Warner voted "no" on this one, bless their hearts.

UPDATE @ 19:03

Graham S.Amdt.2078, a Sense of the Senate resolution calling for maximum tours of duty longer than the current Pentagon target calling for 12 months dwell time between deployments (the amendment as modified is silent on the subject of duration of a tour of duty), was REJECTED on a 41 - 55 vote. (60 votes needed to pass, by UC agreement)

I missed the vote count on that one, but at least I got the outcome right.

Senator McConnell introduces S.Amdt.2061 setting a statutory deadline (the year 2017) for the disposal of chemical weaponry presently located in the United States. 100 tons of VX gas, where 10 milligrams is a potentially fatal dose. This is not a contentious issue.

UPDATE @ 19:25

Here is an interesting clause in S.Amdt.2011, the substitute amendment:

SEC. 593. WAIVER OF TIME LIMITATIONS ON AWARD OF MEDALS OF HONOR TO CERTAIN MEMBERS OF THE ARMY.

(a) Waiver of Time Limitations.--Notwithstanding the time limitations specified in section 3744 of title 10, United States Code, or any other time limitation with respect to the awarding of certain medals to persons who served in the military service, the President may award the Medal of Honor under section 3741 of that title to any of the persons named in subsections (b), (c), (d), (e), and (f) for the acts of valor referred to in the respective subsections. ...

(d) Philip Shadrach.--Subsection (a) applies with respect to Philip G. Shadrach, for conspicuous acts of gallantry and intrepidity at the risk of his life above and beyond the call of duty on April 12, 1862, as a Union Soldier, serving in the grade of Private during the Civil War, with Company K, 2nd Ohio Volunteer Infantry Regiment. ...

(f) George Wilson.--Subsection (a) applies with respect to George D. Wilson, for conspicuous acts of gallantry and intrepidity at the risk of his life above and beyond the call of duty on April 12, 1862, as a Union Soldier, serving in the grade of Private during the Civil War, with Company B, 2nd Ohio Volunteer Infantry Regiment.

That sure piques my sense of curiosity.

April 12, 1862 issue (photo lifted from an eBay auction) -- they guy on the left looks like Ed Gillespie (it's General Buell). Much more Harper's at http://www.sonofthesouth.net/, riveting reading ... this page picked at random.

Anyway, on that day in history, "Union troops occupy Fort Pulaski Georgia," "James Andrews steals Confederate train (General) at Kennesaw, Georgia," (The Great Locomotive Chase) and New-York Illustrated News published War for the Union.--The Battle at Pea Ridge.

Shadrach and Wilson are to be recognized for their role in "Andrews Raiders" (The Great Locomotive Chase). More at Railfanning.org and Southern Museum of Civil War and Locomotive History.

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UPDATE @ July 12

On Monday, I commented briefly on the report that Gonzales "knew of civil rights abuses" and testified falsely to Congress. Orin Kerr at Volokh Conspiracy has composed a thorough analysis of the report at Washington Post's Weak Case That Gonzales Lied.

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The agenda for the Senate Judiciary Committee Executive Business Meeting of July 12 includes these District Court judicial nominees (no Southwick, and none of the other five Circuit Court nominees):

• William Lindsay Osteen, Jr. - Middle District of North Carolina
• Martin Karl Reidinger - Western District of North Carolina
• Timothy D. DeGiusti - Western District of Oklahoma
• Janis Lynn Sammartino - Southern District of California

A few news reports indicate that Senators Specter and Hatch are considering making judicial nominations a more visible political issue, with their pitch revolving around the stalled Southwick nomination. I take that as a sign they are ready to throw Kethledge, Keisler, Livingston and Murphy overboard - those being re-nominations as a result of Judiciary Committee inaction and Senate returns during the 109th Congress.

Silence on those stalled nominations, in favor of Southwick's (which just happens to be a nomination that Senator Leahy had once put on the agenda), will firm up my impression that the "fight" is half-hearted, and will ultimately conclude with Republicans asking President Bush to send up judicial nominees pre-approved by a bipartisan (read "liberal") Senate.

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I corrected statements above that Graham's amendment called for tours of duty longer than 12 months. Contrary to direct and unambiguous assertions by Senators Levin ("this amendment, which says the goal should be 15 months for deployed forces, is harder on the troops than the current goal") and Webb ("It states as a goal, a goal that members of the regular components should be deployed for no more than 15 months"), the amendment is silent on the subject of duration of tour of duty, and speaks only to the dwell time between extended operational deployments.

Innocent mistake or deliberate falsehood? You make the call.

It's impossible to point out plain falsehoods and gross reading errors when the involved text is unavailable.

---===---

Hat tip to HowAppealing, the bottom line of Cass Sunstein's OpEd, Defining executive privilege

The president's best answer is that this is not a judicial proceeding and that Congress has not demonstrated anything like sufficient need for these materials. The Department of Justice argues that Congress has received "thousands of documents and dozens of hours of testimony already." The department adds that Congress must do more than to say, in a general way, that it fears wrongdoing or that the materials "are of public import"; it must show that they are "demonstrably critical" to Congress' effort to exercise its constitutional role.

Congress' strongest reply is that the evidence reveals a real need for the documents, which are indispensable to establish whether a genuine misuse of executive power has occurred. Congress might add that its own lawmaking prerogatives are at stake. If partisan politics has affected the decision to replace US attorneys, it might seek to enact corrective legislation.

Keep in mind (I harp on this) that the the power to appoint US Attorneys is a power granted to the president by Congress. Contrary to popular belief, the power to appoint US Attorneys is not granted to the president by the Constitution.

---===---

Pending:

• Levin No. 2011, in the nature of a substitute.
• Levin No. 2087, to provide for a reduction and transition of United States forces in Iraq.
• Reed No. 2088 (to Amendment No. 2087), to change the enactment date. [This is a second degree amendment that is used to temporarily keep the amendment tree full]

A unanimous-consent agreement ... at approximately 10:00 a.m. on Thursday, July 12, 2007 ... that Senator McCain, or his designee, be recognized to offer a relevant first-degree amendment, and that Senator Levin then be recognized to offer a relevant second-degree amendment.

I don't believe the McCain amendment noted in the UC agreement has been printed in the Record. That is, I think it will be first proposed today, with its text appearing in today's Record, available tomorrow.

It isn't clear to me if McCain's amendment is meant as a counterpoint to Senator Levin's pending S.Amdt.2087 (GOP co-sponsors are Hagel, Smith and Snowe), which has the following operative language ...

(c) ... (1) Protecting United States and Coalition personnel and infrastructure.
(2) Training, equipping, and providing logistic support to the Iraqi Security Forces.
(3) Engaging in targeted counterterrorism operations against al Qaeda, al Qaeda affiliated groups, and other international terrorist organizations.

(d) Completion of Transition.--The Secretary of Defense shall complete the transition of United States forces to a limited presence and missions as described in subsection (c) by April 30, 2008.

UPDATE @ 10:11

Senator Inhofe spoke on S.1742 - Broadcaster Freedom Act of 2007 (to prevent the Federal Communications Commission from repromulgating the fairness doctrine). More or less a redo and amplification of his July 9 speech on fairness doctrine.

Senator DeMint continued the debate as to protecting the unanimously-passed proposed Senate rule on the subject of earmark transparency. He also pointed out, with particularity, why Reid and Durbin statements (to the effect that senators are voluntarily following the proposed rule) are false. Senator DeMint said canceling the August recess would be a good trade, if it results in an open and public debate over earmark transparency.

Senator Whitehouse talks about Iraq.

UPDATE @ 10:42

The planned side-by-side McCain/Levin debate is delayed. The McCain/Graham side being represented by S.Amdt.2064, which is on the subject of Combat Status Review Tribunals (CSRTs). Graham's amendment would "Strike section 1023" of the substitute amendment/bill, S.Amdt.2011; where section 1023 contains a few pages of definition and substantive procedure. Per an exchange on the Senate floor, Senators Graham and Levin are working with their staffs to see if they can find some common ground on the subject.

The function of CSRTs is at the root of the Abraham declaration and recent decisions by military judges to dismiss charges against certain detainees presently held at GTMO.

The contentious CSRT provisions in section 1023 include ...

(4) PROCEDURES.-- ...
  (B) each detainee is represented in the same manner as provided for the accused before a military commission under section 949c of title 10, United States Code; ...
  (C) each detainee is afforded a reasonable opportunity to obtain witnesses and other evidence, including a process to compel witnesses to appear and testify and to compel the production of other evidence, that is similar to that provided for defense counsel in a military commission under section 949j of title 10, United States Code;
  (D) each detainee is permitted to present evidence in his defense, to cross-examine the witnesses who testify against him, and to examine and respond to evidence admitted against him, while providing for the handling of classified information in a manner so that--
    (i) counsel for the detainee is provided access to the relevant classified evidence, including both evidence admitted against the detainee and any potentially exculpatory evidence, consistent with the procedures for the protection of classified information in section 949d(f) of title 10, United States Code; and
    (ii) the detainee is provided access--
      (I) to all unclassified evidence; and
      (II) to a summary of the classified evidence admitted against the detainee that is sufficiently specific to provide the detainee a fair opportunity to respond, with the assistance of counsel, to such evidence;
  (E) in making a determination of status of any such detainee, a Tribunal may not consider a statement that was obtained through methods that amount to torture; and
  (F) in making a determination of status of a detainee, a Tribunal may not consider a statement in which the degree of coercion is disputed unless--
    (i) the totality of the circumstances renders the statement reliable and possessing sufficient probative value;
    (ii) the interests of justice would best be served by admission of the statement into evidence; and
    (iii) the Tribunal determines that--
      (I) the alleged coercion was incident to the lawful conduct of military operations at the point of apprehension;
      (II) the statement was voluntary; or
      (III) the interrogation methods used to obtain the statement do not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of this Act.

UPDATE @ 11:10

Senator Sessions talked about his S.Amdt.2024, which provides for anti-missile defense of Europe against threats from Iran, in particular nuclear-warhead equipped intercontinental ballistic missiles. He draws as a parallel, US action in defense of a missile threat from North Korea.

UPDATE @ 11:40

A vote is scheduled for 4:00 p.m. on the Sessions amendment.

The Senate will next take up the "Wounded Warriors Legislation," with a vote possibly following the vote on the Sessions amendment, if debate on Wounded Warriors can be completed by that time.

Senator McCain roasted the July 8 New York Times editorial that urges immediate withdrawal from Iraq.

UPDATE @ 11:59

Hat-tip to firedoglake for the liveblog, The House Judiciary Committee has voted to subpoena the Republican National Committee for e-mails relating to the replacement of US Attorneys. I find it rather incredible (if true) that the RNC would assert executive privilege.

In the same hearing, the subcommittee has ruled that Miers assertion of executive privilege cannot be sustained. This boil is going to fester until it pops. I don't see any graceful way to back down while preserving face, for either side. Eventually, it'll be off to court with the issue.

link to comment

They voted to enforce the subpoena -- they've given Miers and/or the WH 5 days to respond and, depending on the response, they will either haul someone ... into court or issue a contempt citation. They are following the procedure as required to issue a contempt citation if and when it is necessary -- there are parliamentary rules in the House that have to be followed ... they got the vote they needed to move forward toward a contempt citation - and Miers has five days to show cause why it shouldn't be issued.

UPDATE @ 12:22

From the White House, Initial Benchmark Assessment Report - July 12, 2007

Press Conference by the President - July 12.

UPDATE @ 13:07

Hat-tip to HowAppealing, Judge Walton has issued his opinion (and ruling) that the supervised release portion of Libby's sentence shall remain in effect. Of some interest, he does so "with great reservation," because the result does not offend the Constitution. In expounding on his reservation, he outlines arguments that Libby might use to appeal the holding that he remains under supervised release. Comes off as sour grapes to me, as the arguments are totally lame in the context of the Libby sentence. On the other hand, the opinion is thorough, and he reaches the conclusion that all sides advocated.

I agree with his rejection of two of the rationales offered by Fitzgerald - the "booking constitutes imprisonment" and "once supervised release is imposed at sentencing, it's firmament, regardless of actual imprisonment" rationales strike me as lame, for various reasons. Footnote 4 contains a good study of the differences between supervised release and parole (they are emphatically different), including a citation to a SCOTUS case that further expounds on the function of supervised release.

In footnote 6, Judge Walton says that had President Bush attempted to substitute parole for supervised release, the substitution would constitute a transgression into an area of authority that is the central prerogative of the judicial branch. This is lame on Judge Walton's part, as all clemency orders represent encroachment on sentencing decisions. No sentence is fully "final" until the sentence has been completed, because the president has the power to commute, and judgement is never final in an ultimate sense, because the president has the power to pardon.

Footnote 9 is pretty intense. Link to 560 kb pdf of the opinion.

Another hat-tip to howappealing, for a link to Josh Gerstein's New York Sun article, Judge Okays Libby Probation - Criticizes Bush's Clemency Order.

More at SCOTUS Blog, Judge: Libby order surrounded by doubt

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Press Conference by the President - July 12, 2007.

THE PRESIDENT: Michael, I -- first of all, the Scooter Libby decision was, I thought, a fair and balanced decision. [Which decision? the jury's? or the commutation?] Secondly, I haven't spent a lot of time talking about the testimony that people throughout my administration were forced to give as a result of the special prosecutor. [And before that, testimony to the FBI forced as a result of a presidential order worked through Ashcroft and then WH counsel Gonzales] I didn't ask them during the time and I haven't asked them since.

I'm aware of the fact that perhaps somebody in the administration [only one?] did disclose the name of that person, and I've often thought about what would have happened had that person [yep, only one] come forth and said, I did it. Would we have had this, you know, endless hours of investigation and a lot of money being spent on this matter? But it's been a tough issue for a lot of people in the White House, and it's run its course and now we're going to move on.

The evidence is strong that at least four people in the administration "disclosed the name of that person." Even Novak says "more than one." I'd add that it is uncontroverted that Hadley of the CIA is a third source cited by Novak. But, notwithstanding Hadley, disclosures were made other than to Novak, and other than by Armitage.

So what would have happened if, in addition to Armitage (who confessed to the FBI), Fleischer, Libby and Rove had come forth and said, "I did it."

I find this situation rather humorous. When the statement is ambiguous, each listener will take away the message that they are prejudiced or predisposed to hear. To President Bush's "what would have happened had that person come forth ...", CNN, KMGH Denver, and AP/NY Post impute the name of Libby to the indefinite "that person"; while others (for example here at JOM, here at FR, and here at NRO) impute the name of Armitage.

The only person who can conclusively clear up the meaning is President Bush, and I'm sure Libby's name will be disassociated from the President's remark via Tony Snow or whoever is next up in press interaction. Meanwhile, I'm confident that President Bush meant the listener to impute the false conclusions that the investigation itself is Armitage's fault, and that (because the only issue is the Novak report, or because only the first leaker counts, or whatever bogus logic the listener self-applies) NOBODY in the White House EVER disclosed "Wilson's wife works at the CIA" to ANY reporter.

UPDATE @ 15:33

Boredom is setting in (for me that is).

I predict the Sessions amendment (to make it US policy to provide an anti-missile defense of Europe against threats from Iran) will pass on a 60-34 vote, with the vote concluding at about 23 minutes to 5 p.m.

UPDATE @ 16:36

One minute off on the time of conclusion, and there was even less controversy on the Sessions amendment than I expected would appear. The Senate probably could have cleared this one with a voice vote, although the roll call vote is good to use for "diplomacy" pertaining to Iran.

Sessions S.Amdt.2024, to make it US policy to provide an anti-missile defense of Europe against threats from Iran, was PASSED on a 90 - 5 vote.
Nay votes: Feinstein, Leahy, Sanders, Tester and Webb

A vote on the Wounded Warriors Legislation in five or ten minutes, followed by a Dorgan amendment (an al Qaeda amendment), Levin/Reed, then moving on to a number of other amendments, details still being negotiated. A Cornyn amendment is to be voted on next week, for example, and the Specter/Leahy habeas amendment has to be addressed somehow.

UPDATE @ 17:18

Levin/McCain S.Amdt.2019 (as amended), the "Wounded Warrior" legislation, was PASSED on a 94 - 0 vote.

Cornyn's S.Amdt.2100 and Dorgan's S.Amdt.2135 will be called up, and I believe they are intended to be treated as side-by-side amendments.

UPDATE @ 17:50

Senator Cornyn's S.Amdt.2100 is a "Sense of the Senate" thing, which is ironic in light of his speech containing a (justified) criticism that the Senate has been taking up so mostly useless material.

(b) Sense of the Senate.--It is the sense of the Senate that--
  (1) the Senate should commit itself to a strategy that will not leave a failed state in Iraq; and
  (2) the Senate should not pass legislation that will undermine our military's ability to prevent a failed state in Iraq.

Senator Dorgan's says his S.Amdt.2135 is material that has twice passed the Senate, only to be removed in conference. He further says that those who are able to obtain a classified briefing will learn that Iraq is not the central location of the al Qaeda threat, rather, our efforts in Iraq are mainly to contain and control sectarian violence. He names Pakistan as containing a concentrated and working element of al Qaeda.

Senator Sununu supports the Dorgan amendment.

UPDATE @ 18:02

Senator Enzi has 30 minutes to introduce a Health Care Bill - presently a "work in progress," says he. Does that mean there is no bill number as of yet? Ahh, there is a bill number, it will be referred to the appropriate committee for further work.

S.1783 - A bill to provide 10 steps to transform health care in America.

I'm getting a gut feeling that the Senate is winding down for the weekend.

UPDATE @ 18:40

C-SPAN2 crawl is reporting (as Grassley steps up to talk about North Korea) that the House has passed a troop withdrawal timetable (H.R.2956) on a 223-201 vote, with Republicans Jones, Emerson, Duncan and Gilchrest voting for the timetable. Kucinich voted No. Now that's a weird vote, coming from that socialist twerp.

The title of the bill is typical "headline" quality: "Responsible Redeployment from Iraq Act"

The text of H.R.2956 is fairly short, and if you are reading this, you should click on the link and read the bill.

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Referring to the United State release of 25 million dollars of North Korean assets at the Macau-based Banco Delta Asia, previously frozen by the United States for counterfeiting of U.S. currency and money laundering, Senator Grassley says that Uncle Sam is again played for Uncle Sucker (Page S9122), and we should not wonder why the United States isn't respected. Pretty funny speech - it is focused on how we've handled North Korea, where we consistently permit them to renege on their side of agreements.

19:04 - Sununu amendment is agreed to without objection.

19:06 - The Senate is adjourned until 9:00 a.m., Dorgan S.Amdt.2135 will be voted on at 9:30 tomorrow. The Levin/Reed troop withdrawal date amendment won't be voted on until next week.

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UPDATE @ July 13

A brief rebuttal to the Statement of David B. Rivkin Jr. regarding the Libby case.

Uncharacteristic for him, Rivkin is a bit "snarky." He says "Prosecutor Fitzgerald is undoubtedly an honorable man, and, by all accounts, does not have a partisan bone in his body." But later in the same paragraph, he says the appointment of a special prosecutor fosters "Inspector Javier like pursuit of the individual being investigated." Was Ken Starr Inspector Javier like too? How about Barrett, was he? (office appointed May 24, 1995 - terminated May 3, 2006; "to prosecute offenses arising from any false statements that Cisneros had made to the FBI during the background investigation leading to his appointment as HUD Secretary"; at a cost of ??? -- and noting the ONLY allegation of wrongdoing is false statements!)

As to the Libby case, Rivkin fronts numerous bogus rationales is his statement:

• The investigation was unique in its piercing of reporter shield
  • The DOJ has undertaken numerous incursions into the press - BALCO (steroid use) for example
  • Reporters Committee for Freedom of the Press study on subpoenas to the press: Agents of Discovery lists others
• The case amounts to the difference between reporter and Libby memories.
  • The allegation is that Libby's neglected to tell investigators he knew from authoritative sources such as morning briefer, Cathie Martin repeating CIA message, Libby's personal contact with CIA. Those who focus attention on the discrepancy between Libby and reporter recollections (seeing the case as Libby v. reporter recollection instead of as Libby v. CIA-source) are either making a smoke screen, or succumbing to a smoke screen
• Fitzgerald sought reporter testimony to "manufacture" a crime where none existed (or reporters are the only source of incriminating evidence)
  • Suspicion on Libby came from sources other than Copper, Miller and Russert, and testimony from Cooper, Miller and Russert could have corroborated Libby's side
  • The fact that Russert is a source of incriminating evidence results from Libby's claim of being told by Russert. Substitute any reporter's name there, in case Libby is innocently mistaken as to which reporter told him, and it still doesn't cure Libby's forgetting hearing from morning briefer, etc.
• Libby's sentence was extreme, compared with Sandy Berger's (i.e., Libby should get the same deal that Berger did, because both men were accused of compromising secrecy)
  • Berger plead guilty to a misdemeanor in a plea bargain deal, admitted taking the documents, and cooperated with the Department of Justice once he was "caught."
  • Libby maintains he has no recollection of hearing directly from the CIA, indirectly via Cathie Martin, or his morning briefer - he has not admitted to committing the felony crimes of perjury and obstruction of justice
• The jury was misled into rendering a guilty verdict by Fitzgerald's offering of a narrative that outing Plame was a vindictive act aimed at destroying Wilson
  • The "acted out of revenge" motive was first raised by Libby, by saying "we're going to be accused of acting out of revenge." The pattern of claiming a certain attack was forthcoming followed by complaining when the claim was rebutted, was repeated in discovery, motions in limine, and at the trial - including the "cloud over the VP Office" exchange in closing arguments
• Because the case involves the Iraq war and allegations of revenge, the investigation, prosecution and trial are an unfair politicized process
  • "It's only about sex"

[The above outline is posted and is undergoing editing, extension, correction, further corroboration and cross referencing, etc. at Rivkin Statement to House Judiciary Committee Re: Libby Commutation]

I used to think I was the only righty who thought about the Libby case as I do, but found Patterico and Beldar are similarly afflicted.

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Pending:

• Levin No. 2011, in the nature of a substitute.
• Levin No. 2087, to provide for a reduction and transition of United States forces in Iraq.
• Reed No. 2088 (to Amendment No. 2087), to change the enactment date.
• Cornyn No. 2100, to express the sense of the Senate that it is in the national security interest of the United States that Iraq not become a failed state and a safe haven for terrorists.
• Dorgan/Conrad No. 2135, relative to bringing Osama bin Laden and other leaders of al-Qaeda to justice.

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Senator Reid announces no votes on Monday.

Senator McConnell notes that today will be used (mostly) to debate the Levin amendment.

The Dorgan amendment will pass easily.

UPDATE @ 9:54

I had predicted a 10:00 a.m. conclusion to the vote, and 91-0 outcome. The number of senators absent is a reliable clue that action today will be debates, mostly on Iraq, there won't be further voting, and the session will end early in the afternoon. Weekend for the Senate!

Dorgan S.Amdt.2135, relative to bringing Osama bin Laden and other leaders of al-Qaeda to justice, was PASSED on a 87 - 1 vote.
Nay vote: Bunning

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Senator Coleman spoke on an amendment to the Defense Authorization bill that likely duplicates the language of S.1742 - Broadcaster Freedom Act of 2007, in a debate with Senator Durbin who objects to the introduction of the amendment. The amendment is barely germane, and raising the fairness doctrine as an amendment to Defense Authorization is simply a device to facilitate conducting a debate on the floor of the Senate.

UPDATE @ 12:08

Senator Klobuchar made the adjournment moves, but Senator Warner apparently wants some time to speak before the Senate adjourns until Monday afternoon. At Senator Warner's motion, the Senate entered an executive session, confirmed Preston Geren to be Secretary of the Army, returned to legislative business and regular order, and adjourned at 12:10.

The three ring circus known as the Senate will resume at 2:00 p.m. Monday, July 16.

UPDATE @ 17:28

Links to a very handy resource as to White House positions on legislation, including statements of which bills and sections of bills create the risk of a presidential veto ...

Statements of Administration Policy
Statements of Administration Policy Index

Here are links to three recent statements of administration policy pertinent to the Defense Authorization Bill and to the Iraq pullout debates presently being conducted in Congress ...

• On H.R.1585 - National Defense Authorization Act, FY 2008 (House 05/16/2007)
• On S.1547 - National Defense Authorization Act, FY 2008 (Senate 07/10/2007)

• On H.R.2956 - To require the Secretary of Defense to commence the reduction of the number of United States Armed Forces in Iraq to a limited presence by April 1, 2008 (House 07/12/2007)

"Will veto" provisions include Section 1023 (CSRT provisions, discussed above and referred to as the Graham amendment); efforts to modify statutory habeas corpus provisions (noted above and referred to as the Specter/Leahy amendment); and efforts to impose statutory troop drawdown requirements for the Iraq theater of military action.

UPDATE @ 18:00

Senator Warner's July 12 statement on the Iraqi Benchmarks Report says, in part:

I am disappointed that, after great sacrifice by U.S. and Iraqi troops since the announcement of the surge in January, the Iraqi government has not met critical political benchmarks in that period. That government is simply not providing leadership worthy of the considerable sacrifice of our forces, and this has to change immediately

Add another flavor to the menu of Iraq "policy - pullout" amendments:
Warner Statement on Warner-Lugar Iraq Amendment - July 13, 2007

Lugar Statement on Warner-Lugar Amendment - July 13, 2007

... I believe there is strong evidence that the Iraqi government and political system will not achieve necessary political accommodations in a short time frame. I believe that continuing with the surge delays policy changes that have a far better chance of protecting our vital interests in the region over a sustained period. ...

With this goal in mind, our amendment mandates that the Administration immediately initiate planning for post-September contingencies, including a drawdown or re-deployment of forces. It requires those plans to be presented to Congress by October 16 of this year, and it states that the plans should be designed to be executable beginning not later than December 31. The surge must not be an excuse for failing to prepare for the next phase of our involvement in Iraq, whether that is withdrawal, redeployment, or some other option. We saw in 2003 after the initial invasion of Iraq, the disastrous results of failing to plan adequately for contingencies.

To ensure an opportunity to debate the implications of General Petraeus' report, our amendment declares that the rationale given for the authorization to use force, which passed in 2002, is obsolete and requires revision. ...

... A revised authorization may require us to consider complex issues that Congress has not yet debated, including the missions of a residual force in Iraq, the re-deployment of units to other countries, and the role of U.S. troops as it relates to the broader Persian Gulf region. ...

... we must understand the limits and risks of military power far better than we understood them when we invaded Iraq.

The Warner-Lugar amendment advocates a consistent diplomatic forum related to Iraq that is open to all parties in the Middle East. The purpose of the forum would be to improve transparency of national interests so that neighboring states and other actors avoid missteps. I believe it would be in the self-interest of every nation in the region to attend such meetings, as well as the United States, EU representatives, or other interested parties. Such a forum could facilitate more regular contact with Syria and Iran with less drama and rhetoric. The existence of a predictable and regular forum in the region would be especially important for dealing with refugee problems, regulating borders, exploring development initiatives, and preventing conflict between the Kurds and Turks.

(More Warner material here)
(Lugar on Iraq)

I'm wondering about the option of "more and bigger surge!" Is that off the table per President Bush? Plus, by the time Defense Authorization is passed (likely September, if ever, accounting for the time in conference), a report by October seems a bit harried for a pace ... although if the White House already has plans for the future, all that would be required would be to present what already exists.

UPDATE @ 20:45

The Lugar-Warner amendment is S.Amdt.2208 (link dead until July 13 Record is published). There are scores of news reports on the amendment. This FoxNews story has a link to a scanned-in rendition of the amendment: http://www.foxnews.com/projects/pdf/warnerlugariraqamdt.pdf (580 kb pdf file - scanned in 18 pages of LARGE text)

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Hat-tip to JURIST, the House Judiciary Committee has issued a subpoena to the RNC, and has formally notified Harriet Miers of a risk of being cited for contempt of Congress. All of that pertaining to the investigation into replacement of US Attorneys.

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A thought provoking article as the Senate gears up to (again) debate the Military Commissions Act, The "War on Terror": Criminal Law Minus or Law of War Plus? by David Glazier, probes the space between military action and law enforcement action in non-technical terms.

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UPDATE @ July 14

The Warner-Lugar amendment, S.Amdt.2208, was introduced with the following statement in the Record, reproduced here in its entirety:

[Page: S9208]
    Mr. WARNER. Mr. President, on behalf of myself and Senator Lugar, I send to the desk an amendment to H.R. 1585.
    The PRESIDING OFFICER. The amendment is considered submitted.

The text of the amendment starts at the bottom of Page S9222. Most of the language comprises "findings" by Congress and "Sense of Congress" resolutions. The operational language boils down to:

SEC. 1541. FINDINGS. [ 24 numbered findings ]

SEC. 1542. REPORTING AND PLANNING REQUIREMENTS.

    (a) The President shall require the Director of National Intelligence to review and update, as required, the National Intelligence Estimate (NIE) titled ``Prospects for Iraq's Stability: A Challenging Road Ahead'', dated January 2007, not later than September 4, 2007. The updated NIE shall include an assessment specifically of the consequences of the various courses of action reducing U.S. forces in Iraq on the future of Iraq, the Middle East region, U.S. national interests, and U.S. partners and allies.

    (b) The President, in close coordination with the Secretaries of Defense and State, Joint Chiefs of Staff, and other senior military leaders, shall, as a matter of prudence, consider all options and initiate planning to:

        (1) transition U.S. combat forces from policing the civil strife or sectarian violence in Iraq;
        (2) redeploy or reallocate those forces in a responsible manner as conditions permit;
        (3) refocus U.S. military operations on maintaining the territorial integrity of Iraq, denying international terrorists a safe haven, conducting counterterrorism operations against al Qaeda in Iraq and its associates, protecting U.S. forces and facilities, and training and equipping Iraqi forces to take full responsibility for their own security; and
        (4) address the findings of the Independent Assessment of the Iraqi Security Forces as provided by PL 110-28 to include decision points for the redeployment of U.S. forces from Iraq that are based upon the readiness of Iraqi Security Forces.

    (c) The aforementioned plans shall be presented to Congress, in a format determined by the Administration, not later than October 16, 2007, and shall be accompanied by the results from modeling and simulation efforts by appropriate departments and agencies of the U.S. government that address the consequences of the courses of action proposed and analyzed. The results of that modeling and simulation shall be made available to Congress.

    (d) We recommend that the President and the Administration design plans to be executable beginning not later than December 31, 2007.

SEC. 1544. STATUS OF FORCES AGREEMENT.

    The President shall direct the Secretary of State, in conjunction with the Secretary of Defense, to initiate negotiations with the Government of Iraq on a Status of Forces Agreement with a goal to complete work not later than 120 days after enactment of this Act.

The above is the sum total of "operational" statutory language in the Warner-Lugar amendment, and even the December 31, 2007 ready-to-implement date recited in "1542(d)" is in the nature of a recommendation rather than a requirement.

The "Status of Forces Agreement" provision reminds us of an open can of worms, the current absence of a Status of Forces Agreement (SOFA). A major issue in crafting a SOFA between the government of the United States and the government of Iraq relates to providing immunity for US troops and contractors. But that is far from the only issue, and is not, in my opinion, the most substantial issue.

Background reading at:

• an historical perspective in Time magazine's Justice & Law in Status-of-Forces Agreements (Jun. 17, 1957)
• a FoxNews article, Legal Change Coming for U.S. Troops in Iraq by Peter Brownfeld (April 23, 2004)
• an article published by The American Society of International Law, The Legal Status of Coalition Forces in Iraq After the June 30 Handover by Mayur Patel (March 2004)
• a Washington Post article, U.S. Immunity in Iraq Will Go Beyond June 30 by Robin Wright (June 24, 2004)
• a New York Sun article, 'Broad Latitude' Is Recommended For U.S. Military's Stay in Iraq by Eli Lake (February 3, 2005)
• a news item attributed to Arabic press, a SCIRI leader calls for a security agreement with the US (March 01, 2007)
• an article attributed to Global Americana Institute (an interesting group, my knee-jerk reaction was that this is a radical leftist/socialist group, but it seems their mission is to translate documents on American history, government and civics into the Arabic language, and thereby make the principles elucidated therein accessible to people who can't read western languages. This February 2007 article by Juan Cole indicates that he leans pretty hard to the left) Thoughts on the Middle East, History, and Religion by Juan Cole (April 05, 2007)
• From the Council on Foreign Relations, Zebari: Iraq's Neighbors "Have Not Been Helpful" by Lionel Beehner (June 14, 2007)

There has been recent legislative action on the subject of negotiating a Status-of-Forces Agreement with Iraq, and I urge the reader to click on these links too, to get a flavor of the tenor of debate and additional insight into the nature of the issues involved in a SOFA agreement (pretty much boils down to "who's in charge here?"):

• Reps. Tauscher, Israel, and Larsen, Renew Longstanding Call for Status of Forces Agreement in Iraq - December 7, 2006
• H.Con.Res.97 - March 22, 2007
• Find Ways to come together on Iraq - a June 6, 2007 exchange on the floor of the House, involving a group that refers to itself as the "Center Aisle Caucus"
• Dent backs legislation to require Bush to adopt Iraq Study Group recommendations - a June 6, 2007 article by Bill Cahir

The balance of the Warner-Lugar amendment is findings and suggestions. It would be a mistake to conclude that the "findings" aren't interesting, based on the fact they aren't reproduced here. My object was to ferret out the substance of legislative action contained in the bill -- actually reading the proposed legislation is invaluable as the legislators and talking heads go about their business of misrepresentation.

SEC. 1543. AUTHORIZATION OF THE USE OF FORCE.

    Findings: [ i.e., what follows is not operational language ]

    (3) The findings that supported H.J. Res. 114, Public Law 107-243, which was enacted in 2002 and which authorized the President to use the Armed Forces of the United States against Iraq, require review and revision. Therefore, as part of his September 15, 2007, report, Congress expects that the President will submit to Congress a proposal to revise Public Law 107-243.

SEC. 1545. SENSE OF CONGRESS ON DIPLOMATIC EFFORTS IN IRAQ AND THE MIDDLE EAST.

    (a) Findings [ 8 numbered findings ]

    (b) It is the Sense of Congress that the United States Government should work vigorously with like-minded governments, including the Iraqi government, to establish a predictable and regular multi-lateral diplomatic forum related to Iraq that meets frequently and is open to all parties in the Middle East.

    [ items (c) through (h) expand on item (b) ]

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UPDATE @ July 15

On Monday, I commented briefly on the report that Gonzales "knew of civil rights abuses" and testified falsely to Congress. The Washington Post is coming back to take another bite at that particular apple, with a July 15 article by John Solomon, In Intelligence World, A Mute Watchdog. It helps the parsing of "There has not been one verified case of civil liberties abuse," with Attorney General Gonzales's July 13th letter response to Senator Specter defining "no abuse" as absence of deliberate misconduct.

The Post article can also probe AG Gonzales's definition of "verified report," which it seems is to be narrowly construed as receipt of a report (documenting deliberate misconduct) from the President's Intelligence Oversight Board (IOB). If a report isn't from the IOB, it isn't a verified report. According to the Post, the IOB did not send reports to the Justice Department until shortly after a May 9, 2007 letter from the Justice Department to the House Judiciary Committee.

I think Attorney General Gonzales May 10 statement to the House Judiciary Committee is that "May 9 letter," as it is dated May 9 at the House Judiciary Committee website.

Fourth, I have directed the National Security Division to begin reviewing all FBI referrals of IOB violations in order to identify recurring problems and to assess the FBI's response to such violations. This review will focus on whether the IOB referrals suggest that a change in policy, training, or oversight mechanisms is required. I have instructed NSD to report to me semiannually on such referrals and to inform the Department's Chief Privacy and Civil Liberties Officer of any referral that raises serious civil liberties or privacy issues.

The Post's claim that IOB did not send reports to the Justice Department until after May 9 needs to be squared with a March 20, 2007 statement of Glenn Fine, Inspector General, US Department of Justice.

We found that from 2003 through 2005, the FBI identified 26 possible intelligence violations involving its use of NSLs, 19 of which the FBI reported to the President's Intelligence Oversight Board (IOB).

The activity completed by March 20, 2007 was an audit by Justice, where Justice interviewed over 100 FBI employees, looked at 77 FBI case files covering 293 National Security Letters, and analyzed the FBI database relating to NSL's. As a result of this audit, Justice became aware that the FBI was reporting to the IOB. This is not at all the same as IOB forwarding reports to Justice, which Executive Order 12334--President's Intelligence Oversight Board clearly requires it to do.

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This April 12, 200 statement by NSA Director Lt. Gen. Hayden to the House Permanent Select Committee on Intelligence provides a thorough description of the oversight checks and balances involved in the government collecting of intelligence, as established by statutes and Executive Orders.

Not important as far as noting any lapse in reporting that represents a critical element of effective oversight, but recalling the claim of need to update FISA "because technology has advanced," Lt. Gen. Hayden said this in April 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.

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Mostly Iraq talk in these transcripts ...

Meet the Press - Senators Graham & Webb
Fox News Sunday - Senator Levin