Monday, September 24, 2007

Defense Authorization - Week Four [H.R.1585]

The Senate will open the week on the Water Resources Development Act, before resuming consideration of Defense Authorization.

If you don't read here on weekends, please give a quick peruse to Senator Dorgan's mention of the case of Donald Vance.

Links to Defense Authorization bill text, amendments, and debate is at the top of the "Week of September 17" post.

  • Graham/Kyl S.Amdt.2064 to strike section 1023 (CSRT modification)
  • Kyl/Lieberman S.Amdt.3017 to express the sense of the Senate regarding Iran [Passed 9/26]
  • Biden S.Amdt.2997 to express the sense of Congress on federalism in Iraq. [Passed 9/26]

Most of this Sept 21 Senate debate was on Biden/Brownback's S.Amdt.2997, "political/federalism surge for Iraq." It includes the text of the amendment, short comments by Senators Brownback, Hutchison, Feinstein and Warner, and extended remarks by Senator Biden. Scroll past the vote on the Levin/Reed amendment to get to the "political/federalism surge" remarks.

My simple-minded reduction asks, "in US history, what came first, the states? or the federal government?" The fact that we are made up of states doesn't make the United States any less of a single entity, as against the rest of the world. The issue is how to divide power between regions and the central government, and the extent the regions have any meaningful say in that division.

Monday schedule:
  • 2:00 p.m. - Open for morning business
  • 3:00 p.m. - Take up H.R.1495 - Water Resources Development Act (WRDA)
  • 5:45 p.m. - Vote on passage of WRDA Conference Report
Tuesday schedule:
  • 10:00 a.m. - Open and move immediately to H.R.1585 - Defense Auth
  • Debate Biden/Brownback #2997, "political-federalism surge," for 30 minutes
  • 10:30 a.m. - Vote on Biden/Brownback with 60 vote threshold
  • Debate Kyl/Lieberman #3017, to express the sense of the Senate regarding Iran

Off-floor action scheduled for the week of September 24:

Senate Judiciary Committee
Tuesday September 25, 9:30 a.m.: Strengthening FISA: Does the Protect America Act Protect Americans' Civil Liberties and Enhance Security?
Thursday, September 27, 10:00 a.m.: Hearings to examine S.1267, S.2035 (both are press shield measures) and other proposed legislation

House Committee on Armed Services
Wednesday, September 26, 10:00 a.m.: to mark up H.R.2826, to restore habeas corpus for individuals detained at GTMO


Transforming the Federal Role in Education

  • Today the First Lady announced that the United States Agency for International Development will launch a major initiative in support of the President's commitment to basic education in Ethiopia, Ghana, Honduras, Liberia, Mali, and Yemen beginning in Fiscal Year 2008.

The same bullet item is recited in Fact Sheet: Today's Education Announcement

[Note: The WH changed the contents of since it was posted here. The "Transforming" page now discusses only domestic education spending. Perhaps trying to downplay Laura Bush outlines education initiative]

It makes an interesting counterpoint to the President's speech excoriating Congress for overspending.

18:13: H.R.1495 - WRDA: Passed 81-12 (veto proof)

A motion to take up and pass H.R.1255, to establish procedures for the consideration of claims of constitutionally based privilege against disclosure of Presidential records, was raised by Senator Feinstein, and objected to by the Republicans.

A motion to take up and pass S.223 - Senate Campaign Disclosure Parity Act, was raised by Senator Feinstein. The bill as written requires electronically-filed campaign finance reports, same as is required for the House and for Presidential candidates.

In the process of objecting, Senator Ensign said that politically-motivated ethics complaints need to be identified as such, and offered a modified consent request that includes considering and debating an Ensign amendment to accomplish that objective. Senator Feinstein objected to part of the proposal that requires disclosure of donors to organizations that typically file the ethics complaints. Dueling objections.

She went on to say the identity of the objecting Republican (objecting to the underlying S.223 bill) is unknown, and then "invoked" a measure of recently-passed S.1 that requires the disclosure of the identity of a Senator who objects to proceeding to a bill. The hold on S.223 must be made public within six days. Senator Feingold piles on by reiterating the same about the "new rule on secret holds," and went on to say that he believes Senator Ensign (who voiced his reason for objecting) has satisfied the new rule by disclosing his objection.

18:37: Schumer on his perpetual gun-grab with what he refers to as "NICS Improvement Act." If I have the background correct, this bill makes gun possession or purchase a federal offense, to anybody who seeks psychiatric care. (H.R.2640)

19:04: The Senate stands adjourned until 10:00 a.m. tomorrow.

UPDATE @ Sept. 25

H.J.Res.43 - "That subsection (b) of section 3101 of title 31, United States Code, is amended by striking out the dollar limitation contained in such subsection [$8,965,000,000,000] and inserting in lieu thereof $9,815,000,000,000." See also Senate Report 110-184.


Judge Brownback's dismissal of Khadr has been reversed, and the military commissions trial can go on, with what amounts to a resubmission of CSRT evidence to a military judge. Khadr was found to be an "enemy combatant" by a CSRT, but in order to be in the jurisdiction of Judge Brownback's Court, Khadr must be an "alien unlawful enemy combatant." Therefore, one issue to be decided by Judge Brownback is whether Khadr is an "unlawful enemy combatant." Lyle Denniston's excellent summary of the ruling: "Military commissions' powers broadened" includes observations that are not likely to be accurately represented by media, if represented at all. Media links AP and NYT here and, WaPo and LATimes here, h/t Howard Bashman.


Beldar's latest on the Senator Craig saga, "Of pleas and piñatas."


The planned timing for debate and vote on the Biden "political/federalism surge" amendment was changed yesterday. The time for the resumption of debate and vote is indefinite, and will certainly be later than the 10:30 a.m. gleaned from Friday's Record in combination with agreement to debate for 30 minutes prior to the vote.

    [Friday's Record] Mr. LEVIN. ... On Tuesday at 10 o'clock, we are going to have a unanimous consent agreement that the Biden amendment will be voted on at 10 o'clock on Tuesday. That is going to be part of a unanimous consent agreement that is being prepared.
    In addition, in terms of the Lieberman-Kyl amendment, there will be some debate on that today, and on Monday, and we will make an effort to see if we can't agree on a time certain on Tuesday, after the Biden amendment is disposed of on Tuesday. But we can't commit to that now. We will make a good-faith effort on Monday to set up that time on Tuesday, after the Biden amendment is disposed of.
    Mr. REID. Mr. President, I think we are headed in the right direction. We may have to drag that vote--not drag it but set it for 10:15. We usually don't come in on Tuesdays until 10 o'clock, so would 10:15 be OK?


    [Monday's Record] Mr. REID. ... that on Tuesday, the morning hour be deemed to have expired, the time for the two leaders be reserved ... that there then be a period of morning business for 60 minutes ... that once morning business is closed, the Senate resume consideration of H.R. 1585

10:03: Senator Reid said the Senate expects to receive a message from House today on SCHIP, and that the Senate will take the steps necessary to ratify it so it can be sent to President Bush. He did not outline any schedule for that, or for taking up the Biden/Brownback "political/federalism surge" amendment.

10:17: Senator Kyl objects to the Biden amendment, because it comes off as the US dictating to Iraqis how they will form their government. He invokes "the sovereignty of the Iraqi people." Reading the Biden/Brownback amendment, I see nothing that directs "partitioning" at all (what does that mean, anyway?), let alone any particular geographic lines of partitioning.

10:38: Morning business has been extended to 11:45 a.m. Senator Stabenow noting that Senate passage of SCHIP would be with a veto-proof majority, if the Senate votes as it did on its version in the first place.

UPDATE @ 14:24

There's a short "stack" of procedural motions in play on the defense authorization bill. I don't know exactly what's in that stack, but it appears to be aimed at forcing a vote on a hate crimes amendment within the context of defense authorization.

Senator Reid made a motion to recommit the bill to committee, with an amendment #3039, and called for (and obtained sufficient second) roll call votes on the motion to recommit with the amendment. He also called up amendment #3040, a second degree amendment to #3039 (thereby filling the amendment tree), and aborted a doomed attempt to call up a second 2nd degree amendment. Senator Reid also obtained unanimous consent that there be no further cloture motions on the bill for the remainder of today.

The general effect of a motion to recommit is to "step an issue to the front of the line, to the exclusion of all other issues." One artifact of a motion to recommit is that it has priority in voting order, over all pending amendments. The motion to recommit doesn't necessarily create delay, the bill can be "out and back" with the wink of an eye. Another artifact is that, if passed, a motion to recommit causes already-passed amendments to be "wiped out," although as a practical matter I assume they can be reestablished under a UC agreement.

Historical notes: Zero motions to recommit were filed in 2005, two were filed in 2006. A Senator Ensign Motion to Recommit Emergency Supplemental was tabled on a 68-28 vote, on April 26, 2006. A Senator Frist Motion to Recommit Health Insurance Act was mooted when the modified bill (S.1955) died before final passage, in May 2006.

In 2007, Senator Reid filed and later withdrew a motion to recommit H.J.Res.20 (Continuing appropriations), and Senator DeMint's motion to recommit the conference report on H.R.1 (implementing 9/11 Commission recommendations) was rejected on a 26-67 vote.

Back to the present: Senator Reid announces that there may be a Republican side-by-side to the Democrat proposed hate-crime amendment. I suppose that will be a love-crime amendment.

14:40: Senator Kennedy using morning business to discuss SCHIP, and also to advocate for the proposed hate-crime package.

15:30: The Senate stands in recess until 17:00 for the unveiling of a portrait of Robert Byrd, in the old Senate chambers.

18:00: Senators Warner, Levin and Biden in a bit of a round robin on the subject of Biden's "political/federalism surge" amendment, with Senator Warner indicating an inclination to be in favor, provided some adjustments are made. [Changes detailed starting at S12033]

18:21: Senator Levin sent a series of 37 34 amendments to the desk, to be voted on agreed to (no vote) en bloc, and with remarks to be entered "at the appropriate place in the Record."

18:36: Senator Reid announced no votes tonight. The procedural posture will be clear from the Record, but I believe the Biden amendment is "behind" Reid's motion to recommit the bill.

18:55: Senator Thune noted that defense authorization has been used as a vehicle for repeat votes on Democrat sponsored Iraq-related amendments (transition the mission, pull out, defund); and is now being "hijacked" (my term, not Senator Thune's) to be the vehicle for hate crimes legislation. All at the expense of passing defense authorization, which is necessary to support the US military.

18:57: Senator Corker (he reminds me of Freddie Mercury of Queen) talked about SCHIP and the upcoming veto by President Bush.

19:30: Byron York on the Smith/Kennedy hate crime proposal.

19:33: Senator Corker introduces some negotiated procedure.

  • Hatch S.Amdt.3047 introduced (probably the GOP counterpart for the Smith/Kennedy hate crimes amendment), and a cloture motion was filed to "decide the fate" of the amendment
  • If a cloture motion is filed tomorrow, on a motion to concur with House amendments to H.R.976 - SCHIP, that cloture motion will be be treated as though it was filed today
  • S.Res.325 - A resolution supporting efforts to increase childhood cancer awareness, treatment, and research; was passed
  • H.R.3375 - To extend the trade adjustment assistance program under the Trade Act of 1974 for 3 months; was passed

19:49: Senator Whitehouse's turn to close shop.

  • S.2085 - A bill to delay for 6 months the requirement to use of tamper-resistant prescription pads under the Medicaid program; was read three times and was passed (technically, was read the third time, the record for Friday shows it being read twice and referred to the Committee on Finance). This bill first appeared on Friday the 21st, but wasn't put on Monday's or Tuesday's legislative calendar.

19:50: The Senate stands adjourned until 9:30 a.m., with 1 hour of morning business. No further schedule given. C-SPAN2 reports that in the balance of the week, the Senate will take up SCHIP, and perhaps a continuing spending resolution, in addition to whatever becomes of defense authorization.

A few cloture motions will mature on Thursday. A couple on dueling hate crimes amendments, and probably definitely one on the SCHIP conference report. [See UC agreement, "... on Wednesday, September 26, 2007, when cloture is filed on the motion to concur in the House amendments to the Senate amendments to H.R. 976, the Children's Health Insurance Program Reauthorization Act of 2007, that it then be considered to have been filed on Tuesday ..."]

UPDATE @ Sept. 26

Interesting and useful point of view on the CMCR decision in the Khadr case at Balkinize: What's Wrong With the Khadr Decision.

It objects to the "lawful/unlawful" distinction, as applied, and argues for the use of distinction between privileged and unprivileged belligerents. Useful in that it reflects on both the nature of the actor, and the nature of the act -- and both aspects certainly have play as the legal system struggles with which court system and procedural rules apply across the range of possible combination of those aspects.


Nomination withdrawn: John A. Rizzo, to be General Counsel of the CIA, sent to the Senate on January 9, 2007.

The NYT reports on this one: Nominee for C.I.A. Counsel Withdraws

Also on the subject of nominations, but reviewing the makeup of the 4th Circuit, read 4th Circuit's 5-5 Split May Impact Hot-Button Cases - by Brendan Smith. (h/t HowAppealing)


Today is the day the judge in Minnesota will meet with Senator Craig's lawyers to discuss withdrawing the Senator's guilty plea. Beldar describes how he would eviscerate Craig, based on non-appearance, taking advantage of a tactical error by Craig's counsel.



  • Graham/Kyl S.Amdt.2064 to strike section 1023
  • Kyl/Lieberman S.Amdt.3017 to express the sense of the Senate regarding Iran. [Passed 76-22]
  • Biden S.Amdt.2997 to express the sense of Congress on federalism in Iraq. [Passed 75-23]
  • Kennedy/Smith S.Amdt.3035 (to the language proposed to be stricken by Amendment No. 2064), to provide Federal assistance to States, local jurisdictions, and Indian tribes to prosecute hate crimes.
  • Motion to recommit the bill to the Committee on Armed Services, with instructions to report back forthwith, with Reid S.Amdt.3038 (enactment date 3 days after passage).
  • Reid S.Amdt.3039 (to the instructions of the motion to recommit), enactment date 2 days after passage.
  • Reid S.Amdt.3040 (to Amendment No. 3039), enactment date 1 day after passage.
  • Hatch S.Amdt.3047 (to Amendment No. 2011), to require comprehensive study and support for criminal investigations and prosecutions by State and local law enforcement officials.
Cloture motions to be voted Thursday:
  • on Kennedy/Smith S.Amdt.3035
  • on Hatch S.Amdt.3047
  • on House-passed version of H.R.976 - SCHIP

I'm not perfectly clear as to how the motion to recommit will be used, procedurally, although I think its intended effect is to stifle the filing of further amendments to the bill. A motion to commit has precedence over a motion to amend, according to Senate Rule XXII. Riddick's has more detail, and this "usual" precedence can be (and has been) overridden by UC agreements to vote on amendments or motions, and in general, conduct business as usual provided there is unanimous consent. At this point, the motion to recommit is just "hanging there," providing the "must have unanimous consent" effect for certain actions that are otherwise the prerogative of a single senator. The motion to recommit will probably be mooted by final passage of defense authorization, without ever being referred to again.

My intuition, for what it's worth, says the debate today will be on the hate crimes amendments, not on Iraq (Biden/Brownback v. Kyl/Lieberman), and not on defense authorization. I'd like to know what Senator Reid meant by "not anytime in the near future" when he said this:

    Mr. REID. Mr. Chairman, there will be no more votes tonight. We have tried to work something out on the Kyl-Lieberman amendment and the Biden amendment. We have been unable to do that.
    We have been very close a few times, but we have just been informed that Senator Biden will not have a vote anytime in the near future. There will not be a vote on the other one [Kyl/Lieberman] anytime in the near future. We hope tonight will bring more clearness on the issue.

On the Hate Crimes Diversion

Notice that the Kennedy/Smith hate crimes amendment is to Section 1023, and that Section 1023 is proposed to be stricken. That is, if Kennedy/Smith is passed, and then Graham/Kyl is passed, the Kennedy/Smith amendment will be stricken. This hints at two things:

the Kennedy/Smith vote is probably a do-nothing sham

due to be erased even if it passes. Typically this is done to "give comfort" to fence sitting Senators, they can vote their conscience without fear of that vote being put to effect. Secondly, that there is an expectation that Graham/Kyl (to strike or amend revisions to the present CSRT process) will eventually pass.

[See mea culpa at Sept 28 - the amendment replaces Section 1023, it doesn't amend it]

The Hatch amendment, on the other hand, is to a durable "substitute" amendment.

The Hatch amendment sets out a study of the rate of occurrence of "relevant offenses," and adds the classes of gender and age to the usual "race, religion, disability, sexual orientation, or ethnicity" classes. The Hatch program also gives the Attorney General discretion to provide technical and/or financial assistance to state or local prosecutors, where the state or local entity lacks the resources to investigate or prosecute a hate crime. Financial assistance is limited to $100,000 per grant, and $5,000,000 per year.

9:35: Senator Reid indicated that scheduling of the Biden/Brownback v. Kyl/Lieberman votes is still being negotiated. Actions to be taken this week include SCHIP, a continuing appropriations resolution (H.J.Res.52), and increasing the debt limit (H.J.Res.43).

Senator McConnell spoke of the ongoing unrest in Burma.


H/T HowAppealing, a discouraging, yet extremely interesting article that looks behind the legal details involved in the CSRT process.

Dispute Stymies Guantanamo Terror Trials
by Jess Bravin - WSJ

10:30: Morning business was generally on SCHIP (debating its scope of play as to nationalizing health care, and its cost) and on delaying passage of the defense authorization bill by using it as the vehicle for numerous and sundry unrelated issues.

11:40: Morning business droned on. Senator Durbin talked about his intention to reintroduce the DREAM Act. If my sense of the effect of the motion to recommit is correct, his intention is already thwarted. He can't introduce a new amendment to this bill, absent unanimous consent. Of course, he can talk about anything.

UPDATE @ 12:14

UC Agreement reached to vote "right now" on Biden/Brownback #2997 and Kyle/Lieberman #3017, each as modified, and each with a 60 vote threshold. The vote on Biden/Brownback got underway at 12:16.

Following that action, the Senate will proceed to Coburn #2196 (as part of the agreement), and then to Webb #2999 (not part of the agreement).

12:40: Biden/Brownback #2997: Passed 75-23
GOP Aye votes: Bennett, Brownback, Chambliss, Cochran, Coleman, Collins, Domenici, Ensign, Grassley, Gregg, Hatch, Hutchison, Isakson, Lott, Lugar, Martinez, McConnell, Murkowski, Roberts, Shelby, Smith, Snowe, Specter, Stevens, Sununu, and Warner
DEM Nay votes: Feingold, Hagel & Voinovich (I know, two of those are Republicans)
McCain and Obama are on the campaign trail.

Senator Webb reasserts his argument that the Lieberman/Kyl amendment represents the first time the US (and Congress too; declarations of an organization being "terrorist" usually come from the executive directly, or the executive via the State Department) has declared a formal part of a foreign government as a terrorist entity. Voting on that amendment started at about 12:44.

13:02: Lieberman/Kyl #3017: Passed 76-22
GOP Nay votes: Hagel and Lugar

In the "for what it's worth" department, Senator Klobuchar changed her vote to Nay after casting it Aye.

13:04: Senator Coburn calls up #2196, and notes a desire to speak on it for 30 minutes.

Notwithstanding any other provision of this Act, none of the funds authorized to be appropriated by this Act may be used for the National Drug Intelligence Center (NDIC) located in Johnstown, Pennsylvania, except those activities related to the permanent closing of the NDIC and to the relocation of activities performed at NDIC deemed necessary or essential by the Secretary of Defense, in consultation with the appropriate Federal agencies.

Senator Webb's #2999 (link to text) would establish a commission to be known as the "Commission on Wartime Contracting," mostly made up of members of Congress, with a charter to investigate waste, fraud, abuse, and mismanagement.

Both hate crimes amendments are awaiting cloture votes tomorrow, so there won't be votes on those today, although there may be some debate on the subject.

13:31: Senator McCaskill calls up #2999 (link to amendment summary), with modifications at the desk.

At some point this afternoon, Senator Craig announced his intention to stay in the Senate, rather than resign. The judge in Minnesota won't decide Craig's motion to withdraw his guilty plea, until after the end of September.

19:31: S.Res.333 - to authorize the production of records by the permanent subcommittee on investigations of the Committee on Homeland Security and Government Affairs; was passed. [This authorizes the release of Senate testimony for use by federal prosecutors, relating to investigation of and possible prosecutions within the credit counseling industry.]

19:43: Senator Reid announces two hours of debate tomorrow, followed by a stack of cloture votes, in the following order: Kennedy #3035, Hatch #3047, SCHIP. If cloture is NOT invoked, the amendment will be withdrawn, if cloture IS invoked, the Senate would vote on the amendment. After voting on the cloture motions for the two competing hate crimes amendments, a cloture vote on the SCHIP bill as passed by the House.

19:47: The Senate stands adjourned until 9:00 a.m.


Federal Court rules parts of the USA PATRIOT Act to be unconstitutional, an opinion and order I am in the process of reading. It is a facial challenge to the electronic surveillance and physical entry portions of FISA, as amended by the USA PATRIOT Act.

Judge Ann Aiken expressly rejects the conclusion of the FISA Review Court, in it's "In re: Sealed Case" opinion, that as long as a significant purpose of a snoop is the acquisition of foreign intelligence, the criminal law enforcement apparatus can obtain a warrant, drive the search activity (even to seek evidence of criminal activity), and and use any evidence in a criminal prosecution.

... Prior to the Patriot Act, FISA may have had as its "general programmatic purpose . . . to protect the nation against terrorism and espionage threats directed by foreign powers." In re Sealed Case, 310 F.3d at 46. After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its "programmatic purpose" the generation of evidence for law enforcement purposes - which is forbidden without criminal probable cause and a warrant.

    Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. Title III, like the Supreme Court's pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment.

    Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances - a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.

    Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

    For over 200 years, this Nation has adhered to the rule of law - with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill- advised. In this regard, the Supreme Court has cautioned:

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
Keith, 407 U.S. at 314.

    Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution.

The opinion will certainly be appealed, good chance it will go all the way to SCOTUS, seeing as how the first review will be in the 9th Circuit.

Volokh: District Court Judge Invalidates Part of FISA
Jurist: Federal judge rules Patriot Act search, surveillance provisions unconstitutional
Balkinize: Quick Take on Judge Aiken's FISA Decision
Concurring Opinions: Judge Strikes Down Part of USA Patriot Act
HowAppealing: Judge rejects portion of Patriot Act (article links)
Volokh: My Analysis of the Oregon FISA Decision (Orin Kerr)

This is the second adverse ruling against the USA PATRIOT Act this month. The first struck down the National Security Letters (NSL) device.

UPDATE @ Sept. 27

I missed the filing yesterday, of a pair of cloture motions to limit debate on Defense Authorization, one on the substitute amendment (2011), another on the underlying bill. The motions were filed by the GOP, and if conducted per the rules, votes on those cloture motion would happen tomorrow after morning business.

The unspoken colloquy between Senators Levin and Biden on the "political/federalism surge" (the entry of which was proposed two days ago, but was objected to by Senator Thune) concisely summarizes the political process in Iraq, as it relates to federalism and the Sunnis objecting to the federalism part of the Iraq constitution. See Page S12094 at "CONSTITUTIONAL REVIEW COMMISSION". That link also provides the full text of the Biden/Brownback and Kyl/Lieberman (Iran) amendments as modified, which is essential material to support accurate commentary.

  • Graham/Kyl S.Amdt.2064, to strike section 1023 (CSRT revisions)
  • Kennedy/Smith S.Amdt.3035 (to the language proposed to be stricken by Amendment No. 2064), to provide Federal assistance to States, local jurisdictions, and Indian tribes to prosecute hate crimes.
  • Motion to recommit the bill to the Committee on Armed Services, with instructions to report back forthwith, with Reid Amendment No. 3038, (and 3039 and 3040) to change the enactment date.
  • Hatch S.Amdt.3047, to require comprehensive study and support for criminal investigations and prosecutions by State and local law enforcement officials.
  • Coburn S.Amdt.2196, no funds from this bill for National Drug Intelligence Center (NDIC)
  • Webb Modified S.Amdt.2999, to provide for the study and investigation of wartime contracts and contracting processes in Operation Iraqi Freedom and Operation Enduring Freedom.

Beyond the cloture votes starting around 11:00 a.m. today (two hours of debate prior to the first cloture vote), I believe the order of business will be to continue with defense authorization. Assuming the cloture motion on SCHIP passes, some Republicans will require the 30 hours of debate before the final vote.

The business that Senator Reid intends to finish before the end of next week includes:

  • defense authorization (cloture votes Friday)
  • SCHIP (30 hours of debate allowed post cloture - limited to 6 hours by UC) [Passed Thursday]
  • debt limit increase (H.J.Res.43) [Passed Thursday]
  • continuing appropriations resolution (H.J.Res.52) [Passed Thursday]
  • "There are a number of other issues in addition to the CR that we have to finish before Monday. We have no choice. We have a farm bill we have to extend ..."
  • Commerce-State-Justice appropriations (H.R.3093 - Commerce, Justice, Science has yet to be taken up a first time, by the Senate : H.R.2764 - State-Foreign Operations is at the point of agreeing with conference committee report)

In the ever-popular "predictions" department: Kennedy/Smith will come close to obtaining cloture, but will fall short (57-41); Hatch will obtain cloture easily (75-23 or wider margin) and will be passed on a voice vote; cloture will also be invoked on SCHIP (70-28). Remember, my predictions are unreliable!


H/T HowAppealing, the article "Justice Dept.'s warrantless eavesdropping rejected" is on the subject of warrantless acquisition of touch-tones tapped after a call is completed. New technical term for vocabulary: post-cut-through dialed digits (PCTDD).


This one will kick around until it is passed. First submitted 13 years ago, it rises again and again, like the Energizer Bunny.

U.N.'s sea law treaty pushed - David R. Sands (Wa Times)

The Bush administration today begins a fresh push for Senate ratification of the U.N. Law of the Sea accord ... Supporters, including Senate Foreign Relations Committee Chairman Joseph R. Biden, Delaware Democrat, and the panel's ranking Republican, Sen. Richard G. Lugar of Indiana, say this could be the best chance to win the two-thirds majority needed to ratify the treaty.


10:53: Senator Hatch quotes Mick Jagger, "You can't always get what you want ..." but credits the lyric to "an eminent political philosopher." [Correction - Senator Hatch said, "To quote an unappreciated political philosopher"] Cute, and I use the lyric myself, often, but it sounded funny coming from Orin Hatch.

Next step on hate crimes, to make political affiliation a protected class. Get on with the votes already.

11:17: After Senator Reid made a last-minute pitch in favor of SCHIP, and Senator McConnell spoke against the Kennedy hate-crime amendment, voting got underway.

11:38: Cloture on Kennedy/Smith #3035: Passed 60-39
GOP Aye votes: Coleman, Collins, Gregg, Lugar, Smith, Snowe, Specter, Warner, Voinovich

Wow. That's a bit of surprise. The Kennedy amendment was subsequently passed on a voice vote. Don't forget that the fate of this amendment going forward to conference depends on the disposition of the Graham amendment. In other words, the Kennedy/Smith vote is probably a do-nothing sham when all is said and done.

[See mea culpa at Sept 28 - the hate crimes amendment replaces Section 1023, it doesn't amend it]

11:54: Cloture on Hatch #3047: Passed 96-3
The Hatch amendment was subsequently adopted based on an agreement reached before the vote started.
[The Senate agreed to vitiate the cloture motion before the vote, and voted directly on the amendment]

Then the full Senate went into a quorum call. I get a kick out of it, when a full Senate checks for quorum, and when an "empty" Senate (two Senators present, one in the chair) has a treaty-passing 2/3rds vote.

12:13: Cloture Motion on SCHIP H.R.976: Passed 69-30

Well, I was close on one out of three.

Senator Ensign speaks on the same issue he did earlier this week, on the filing of ethics complaints and the relationship of that to S.223 - Senate Campaign Disclosure Parity Act.

12:52: The Senate makes SCHIP its formally pending business, with a time agreement of 6 hours between 12:15 or so and the taking of a vote on the bill. Then to H.J.Res.43 (debt limit, 90 minutes of debate), then to H.J.Res.52 (continuing resolution on appropriations). Looks like a wrap up of the week, late tonight.

Senator McConnell locked in names and time allotments for debate on the Republican side of the SCHIP debate. (DeMint 10 minutes, Bunning 15, Lott 10, Grassley 45, Hatch 30, Vitter 10, Coburn 15, Corker 10, Smith 10, Snowe 15, Murkowski 15, Burr 10, Thune 10, and Cornyn 10 minutes)


A short point - counterpoint on the question of security contractor immunity: Contractors may fall under military law (Wa Times)

UPDATE @ 18:28

The Senate has moved to 90 minutes of debate on raising the debt limit to just shy of 10 trillion dollars.

20:16: Motion to concur with House on SCHIP H.R.976: Passed 67-29

20:31: Debt limit increase H.J.Res.43: Passed 53-42
A few surprising NAY votes: Boxer, Klobuchar, Lautenberg, Mikulski, Sanders

20:47: Continuing resolution H.J.Res.52: Passed 94-1
NAY Vote: Feingold

Hmmm ... the chair (Sanders) announced that Graham's amendment falls, as a result of passing the Kennedy/Smith amendment!? He also recited some odd disposition of the motion to recommit, using amendment numbers other than those actually associated with the motion to recommit. Neither disposition (Graham amendment, motion to recommit) comports with the what I heard with my own ears, or with the statements previously appearing in the record. Something else to check tomorrow.

Senator Webb's #2999 (original text - audit of Iraq contracts) was passed, as modified, on a voice vote.

21:15: Coburn's #2196: Rejected 26-69

Manager's package of amendments is passed. The Senate is moving on to vote on a pair of cloture motions, one for the substitute amendment, and the second on the underlying bill. The bill will not be passed tonight, nor tomorrow.

21:27: Cloture on Substitute Amdt #2011: Passed 89-6

Kennedy Amendment #3058 and a modifying amendment #3109 called up by Senator Reid. The amendment aims to increase the number of federal employees, and change the rules for obtaining contracts let by the federal government. Lots of details in this amendment. Senator Mikulski dubs it the "Remember Walter Reed" amendment.

Office of Management and Budget Circular A-76

No more votes tonight. The Senate will resume consideration of defense authorization in the morning. I'm off to watch the RedSox (now behind 5-3).

Besides the Graham and motion to recommit disposition, I also wonder about the cloture motion on the underlying bill, H.R.1585. Perhaps I missed a massive UC agreement sometime in the afternoon.

21:57: Senate stands adjourned until 10:30 a.m.

UPDATE @ Sept. 28

A couple of interesting articles on GTMO detainees.

U.S. to Allow Key Detainees to Request Lawyers (WaPo)

There went the argument that opening up to civilian lawyers is too big a security risk. Interesting that the ABA objects to the government citing it as a legal resource.

Supreme Court Preview: Detainee Rights on the Docket (Mother Jones) (h/t HowAppealing)

Has a summary of the underlying basis for detaining Boumediene, and notes in conclusion, a speculative comment by Neal Katyal, that the government will act in a way to avoid Court review, perhaps even going so far as to release Boumediene. I hadn't considered that possibility, but there's similar precedent where the government transferred Padilla from military detention and mooted a pending case.


I don't understand the basis for the procedural effects that flowed from invoking cloture on the hate crimes amendment, but here it is, straight from the Daily Digest for September 27.

The following motion and amendments fell when cloture was invoked on Kennedy/Smith S.Amdt.3035 (to the language proposed to be stricken by S.Amdt.2064):
  • Motion to recommit the bill to the Committee on Armed Services, with instructions to report back forthwith, with Reid S.Amdt.3038 (and #3039 and #3040), to change the enactment date.
  • Graham/Kyl S.Amdt. 2064, to strike section 1023

One outcome is that the objectionable hate crimes language will proceed to conference. As for the objectionable CSRT language that was to be addressed by Graham/Kyl #2064, that may have been addressed in an amendment that is part of the manager's package or was quietly passed before the manager's package was passed ... I haven't looked for that yet.

The cloture motion on the underlying bill has been withdrawn by a UC agreement that includes agreement to vote on the bill as amended, at 5:30 p.m. on Monday.


Mystery solved (that was easy). The hate crimes amendment itself accomplished the effect of removing the objectionable Sec.1023. Kennedy/Smith S.Amdt.3035 recites, "In lieu of the matter proposed to be stricken insert the following: ... [hate crimes Section 1070]". Said another way, "Remove Section 1023, and insert Section 1070."

I am rather embarrassed at having overlooked the language of the amendment, and construing, in error, the Digest language "to the language proposed to be stricken by S.Amdt.2064" as leaving Section 1023 in place, but in an amended form that would include hate crimes. A better Digest summary would have recited "in place of the language proposed to be stricken by S.Amdt.2064"

Live and learn. The digest, like case headnotes, is not a perfectly reliable substitute for construing the underlying record.


  • Levin S.Amdt.2011, in the nature of a substitute.
  • Kennedy S.Amdt.3058, to provide for certain public-private competition requirements.
  • Kennedy S.Amdt.3109 (to #3058), to provide for certain public-private competition requirements.

Over on the Executive Calendar side:

A unanimous consent agreement was reached providing that when the Committee on Homeland Security and Governmental Affairs reports the nomination of Julie L. Myers, of Kansas, to be Assistant Secretary of Homeland Security, it be sequentially referred to the Committee on the Judiciary for up to 30 calendar days and that if the nomination is not reported by the completion of that time the nomination be automatically discharged and placed on the executive calendar.

10:35: Senator Reid announces no roll call votes today. First vote at 5:30 p.m. Monday. By UC, the 5:30 p.m. Monday vote is on the bill, which seems to indicate Kennedy S.Amdt.3058 is dead in the water.

The general tenor of his speech is on appropriations, and the threat of vetos by President Bush. Business for next week: Defense appropriations will be started on Tuesday morning, Commerce-State-Justice appropriations after that.

H.R.2693 was read a second time and placed on the calendar. This bill is to have OSHA introduce standards for exposure to diacetyl (the butter smell and taste associated with popcorn).


11:19: Senator Warner notes that he's inclined to permit debate on the Kennedy amendments, in order to provide a record, but that at some point (Monday) they will be withdrawn so that the private-public competition issue can be placed before the appropriate Senate committee, which has so far not had an opportunity to consider the proposal.

12:57: The Senate stands adjourned until 2:00 p.m. Monday. The schedule provides for one hour of morning business, and debate on H.R.1585 from 3:00 p.m. until it votes on final passage, which is scheduled for 5:30 p.m.


The President will veto State Children's Health Insurance Program (SCHIP)


An important ruling from the DC Circuit, relating to its opinion in Parker (the DC gun statute case), Judges evaluate an argument on gun access.

UPDATE @ Oct. 1

17:55: Kennedy #3058 Passed 51-44
GOP AYE Votes: Snowe, Specter, and Warner
DEM "not voting": Biden, Clinton, Dodd, and Obama

Modifying amendment, #3109, was withdrawn.

Defense Auth Subst. Amend. #2011 passed by previous agreement.
18:12: H.R.1585 Passed 92-3
NAY Votes: Byrd, Coburn, Feingold


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