Monday, October 01, 2007

An Appropriations Week - Oct 1, 2007

I'll post any of my comments relating to closing action on H.R.1585 - Defense authorization, at Defense Authorization - Week Four.

The week before October recess is staked out as an appropriations bill week. Senator Reid (and the Record) refers to "Commerce-Justice-State" (or "Commerce-State-Justice") as though it's one bill, and because I'm unsure as to what he means, the list below has both appropriations bills, Commerce-Justice-Science and State-Foreign Operations.

Last week, Senator Reid also mentioned:


The White House Policy Statement relating to Defense Appropriations contains this paragraph:

Section 8103 of the bill purports to prohibit the United States from entering into a basing rights agreement with the Government of Iraq. This provision impermissibly infringes upon the President's constitutional authority to negotiate treaties and conduct the nation's foreign affairs. This provision should be deleted.

As a general point, White House policy statements, when they are available, provide a good preview of which points of particular bills are apt to be contentious on the floor of the Senate. There are quite a few points of difference with regard to defense appropriations. I picked up on that particular one because the construction of US bases in Iraq has been a persistent point of discussion.

15:00: A new version of Public-is-mean amendments? This time with Rush Limbaugh as the target. Senator Reid's letter to Mr. Mark P. Mays CEO, Clear Channel Communications Inc., and speaking from the floor of the Senate, calling for Republicans to join. Yes, I see a difference between criticizing General Petraeus personally and having a general opinion as to soldiers, sailors, Marines and airmen who object to the war in Iraq. But the door is always open to be critical of critics, and "disagreement by proxy" is just another form of the same old political ploy known generally as diversion.

Conclusion of Defense Authorization

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

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

Senator Leahy tried to pass two bills, each met with objection from the GOP, the second one with a statement inserted in the Record by Senator Coburn, as to the rationale for his objection.
S.1327 - A bill to create and extend certain temporary district court judgeships.
S.535 - Emmett Till Unsolved Civil Rights Crime Act

18:49: Senate stands adjourned until 10:00 a.m. Tuesday.

UPDATE @ October 2

Beldar: Is Senator Craig's strategy "winning by losing?"

Losing his effort to reverse his plea bargain, "run the clock." I think Republicans might take a lesson from Democrats in this regard. The tactics of running the clock, denial of guilt, and "it's not wrong unless it's illegal and proved beyond all doubt and unless I admit it" work -- well, for politicians anyway. Don't try this at home.


In opening remarks yesterday, Senator Reid indicated that he intends to take action on the nominations of a circuit court judge and several district court judges, sometime this week. There are two Circuit Court nominations on the Executive Calendar. Leslie Southwick (out of Committee on August 3, Cal. No.291), and Jennifer Elrod (out of Committee on Sept. 20, Cal. No. 302).

The Senate will take up defense appropriations this morning, following morning business which is scheduled to run from approximately 10:00 a.m. to 11:00 a.m.

H.R.3222 - Defense Appropriations
House Report 110-279
Senate Report 110-155
White House Policy Statement

Oct 2, 2007: S.Amdts. 3116-3146
Oct 3, 2007: S.Amdts. 3147-59, 3161-3204, 06, 07

Debate of Oct 2, 2007: Part I - Part II
Debate of Oct 3, 2007: Part I - Part II


10:10: Senator Reid expects two appropriations bills to be handled this week, I assume these are defense appropriations and H.R.3093 - Commerce-Justice-Science. He also reiterated the plan to handle several judicial nominations, one of which is a Circuit Court nominee.

He further indicated that after the October recess, the Senate would move to H.R.3043 - Labor-HHS appropriations (House Report 110-231) (White House Policy Statement).


Senate Judiciary Committee Hearing: Preserving the Rule of Law in the Fight Against Terrorism
Statement Of Chairman Patrick Leahy
Testimony of Jack Goldsmith


Closing business included passing the following:

S.Res.342 - Hispanic Heritage Month
S.Res.343 - National Mammography Day
S.Res.319 - Sense of Senate on US Transportation Command
S.J.Res.13 - Consent of Congress to the International Emergency Management Assistance Memorandum of Understanding (provides for joint US/Canada emergency response, with cross recognition of professional EMT licensing, etc.)

S.2128 - internet tax moratorium, was read the first time

18:16: Senate stands adjourned until 9:30 a.m. tomorrow. On Wednesday, there will be one hour of morning business, followed by resumption of consideration of H.R.3222. I believe a cloture motion was filed to limit debate on the bill, with a cloture vote to be conducted tomorrow by unanimous consent. That is, there is agreement to waive the mandatory "following day but one" interim between filing of the cloture motion and taking the cloture vote.

UPDATE @ October 3

I was mistaken in my surmise that there would be an early cloture vote today (my surmise was based on Senator Brown's stating, just before adjourning the Senate, that the mandatory quorum under Rule XXII was waived). The cloture motion was filed as a precaution. There is no plan to conduct a cloture vote today, or even tomorrow (Thursday) unless Defense Appropriations appears to be stalled.

  • 9:30 to 10:30 : morning business
  • 10:30 : 30 minutes for debate prior to a vote in relation to Graham S.Amdt.3117 ("Border Security First Act of 2007" - this is up to 3 billion dollars total, some of which is to fund H.R.6061, the Secure Fence Act of 2006. The catch? "There is appropriated, out of any money in the Treasury not otherwise appropriated, $3,000,000,000 for fiscal year 2008 ...")
  • Gregg S.Amdt.3119 (to #3117) to be withdrawn
9:38: Senator Reid hopes to have defense appropriations completed today, and hopes to have all the appropriations bills done by November 16. He hopes the October recess can start after business tomorrow. He still hasn't named the Circuit Court nominee that he plans to bring up for a vote (Elrod or Southwick). I think it will be Elrod, as her nomination is barely contentious, whereas the Southwick nomination is being hard fought. (GOP Still Hunting for Southwick Votes - h/t HowAppealing)


Quick collection of news items from some of my regular haunts. One set on the subject of the Terrorist Surveillance Program and the fallout resulting from continued probing of it. Did Gonzales lie when he said there was no DoJ internal contention on the TSP? Will the telecom companies obtain retroactive immunity?

HowAppealing: Ex-White House Lawyer Targets Spy Tactic
HowAppealing: Panel Is Told of 'Mess' Over Eavesdropping
Balkinize: Need to Know? - Marty Lederman

ConfirmThem: Southwick Vote Later This Week?

NatSecAdvisors: Did Quirin Endorse Acting as an "Unlawful Combatant" (detainees)

Beldar: On the subject of Biden's "Iraq federalism - partition" amendment

Passage of Intelligence Authorization

H.R.2082 - Intelligence Authorization Act for Fiscal Year 2008, was passed without debate.

[Record of Passage including S.Amdt.3160]

Morning Business has been extended to accommodate the accolades and discussion that accompanied passage of Intelligence Authorization. The vote on Graham amendment #3117 started at 11:46.

12:09: Graham #3117 Passed 95-1. (Voinovich)


Iraq Kurds ink four new oil deals - AFP


Senator Biden calls up amendments #3167 and #3142, one of which he expects to be "worked out," and the other which he expects will be voted on. He added Senators Graham and Casey as cosponsors of #3142, which appropriates an additional 23.6 billion dollars for mine-resistant vehicles.

Senator Feingold introduced another "sense of the Senate relating to Iraq" amendment, S.Amdt.3164 - transition the mission. A UC agreement was entered for 2 hours of debate and a 60 vote threshold for passage of this amendment. The amendment calls on the president to redeploy out of Iraq by June 2008.

Senator Baucus spoke on a veto-override relating to SCHIP.


Here are most of the past "transition the mission" measures from the 110th Congress, in reverse chronological order. All had 60 vote thresholds, some because they were cloture motions. S.Amdt.1098 was to the WRDA bill.

The GOP Senators inclined to vote for this are Hagel, Smith, and Snowe. Collins voted in favor of #2087, but against #2898. Smith voted AYE for three of the five measures. I haven't heard of any GOP Senator changing their point of view on a "pull out" amendment since September 21st, let alone a change by ten or so Senators. The outcome of this vote is fairly predictable. The sage advice, "If at first you don't succeed, try, try again," isn't universally applicable. Having a military action be a party-line political issue for several years is pathetic.

Senator Dodd explains his NAY vote on #2898 September 21, 2007. Basically, that #2898 was too weak, because it lacks the teeth of defunding the war. Pointed out to show that "lack of support for transition" comes in more than one flavor. Dodd voted "Aye" today.

Oct 2: #3164 June 30, 2008 transition & defund - Rejected 28-68
Sep 21: #2898 9 month transition - Rejected 47-47
Sep 20: #2924 June 30, 2008 transition & defund - Rejected 28-70
Jul 18: #2087 April 30, 2008 transition - Rejected 52-47
May 16: #1098 March 31, 2008 transition & defund - Rejected 29-67
Mar 15: S.J.Res.9 March 31, 2008 transition - Rejected 48-50

Voting on Feingold #3164 started promptly at 2:00 p.m. The 50-46 vote prediction is based on a Feingold statement that this is a "sense of the Senate" amendment. I take that to indicate an absence of a "defunding" clause. If there is a defunding element, the rejection will be more lopsided.

14:22: Feingold #3164 Rejected 28-68.
GOP AYE Votes: Hagel, Smith, Snowe
DEM Nay Votes: Baucus, Bayh, Bingaman, Carper, Casey, Conrad, Dorgan, Inouye, Johnson, Landrieu, Levin, Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Pryor, Reed, Salazar, Tester and Webb


Senator Carper spoke on SCHIP. Defense Appropriations details being hammered out in the backrooms. The only pending amendments are a little one by Sanders, and Biden's pair noted above.

15:05: Senator Biden withdrew his 23.6 billion dollar amendment #3142 (Mine Resistant Vehicles) based on a promise from Senator Inouye that money for the same hardware will appear in a forthcoming supplemental bill. His amendment #3167 was later passed without fanfare.

Durbin #3129 passed on a voice vote. 3 million dollars for pilot "troops to nurse teachers" programs.


Kyl amendment #3144 is for up to $10,000,000 for Program Element 0603895C for the Space Test Bed. This is for research on satellite protection (think GPS, as well as communications and space-based surveillance), and on technologies that could intercept ICBMs from space rather than from the ground. The technologies could also be used to disable enemy satellites from space.

Space Systems Negation is a fairly easy read on the subject of "space security" in general. Space Weapons Spending in the FY 2008 Defense Budget, while "anti program" in nature, contains an excellent summary of the acronyms and the technologies they represent. The Missile Defense Space Test Bed by the Union of Concerned Scientists is an "anti program" review. See Missile Defense Agency Program 0603895C for dry budgetary and technology information from the Pentagon.


18:45: Defense Appropriations H.R.3222 Passed on a voice vote.


An important ruling from the DC Circuit on Bismullah v. Gates, denying the government's petition for rehearing, clarifying the scope of evidence that must be disclosed to detainees, but continues to insist that the same information in the government's possession, that led it to conclude a detainee is properly under detention, must be produced to the Court. Otherwise the Court "will be unable to to confirm that the CSRT's determination was reached in compliance with the DoD regulations and applicable law."

Brief commentary and a link to the opinion is available in Government duty in detainee cases narrowed, over at SCOTUSblog. I don't see a narrowing of the government's duty of production of evidence, except it's a narrower duty than the government tried to paint in its petition for rehearing. Likewise, to the extent this is a "triple defeat" for the detainees, it's the same "triple defeat" they had under the ruling that the government objects strenuously to.

I see this decision as a bigger defeat for the government, than for the detainees. No decision yet on the government's petition for rehearing by the full 10 member Circuit Court.


Also at SCOTUSblog, ACLU seeks to revive NSA spying challenge, commentary and a link to the ACLU petition for a writ of certiorari.

The House Committee on Energy and Commerce :: Committee Opens Investigation into Warrantless Wiretapping. Be sure to read the interrogatory-like letters to one of the telecoms (pick one, AT&T, Verizon or Qwest, the letters are "the same") -- they contain very probing (and thought-provoking) questions.


Closing business by Senator Reid ...

S.Con.Res.45 - passed
(A concurrent resolution commending the Ed Block Courage Award Foundation for its work in aiding children and families affected by child abuse, and designating November 2007 as National Courage Month.)

S.2106 - passed
(A bill to provide nationwide subpoena authority for actions brought under the September 11 Victim Compensation Fund of 2001.)

Eight post office renamings passed en bloc (floor identification of the bills consisted of only their calendar numbers, 389 through 396).

H.R.2828 - read a first time
(To provide compensation to relatives of United States citizens who were killed as a result of the bombings of United States Embassies in East Africa on August 7, 1998.)

The Circuit Court nominee to be handled tomorrow is Elrod, with 1 hour of debate equally divided.

District Court nominees to be voted on tomorrow (also identified only by calendar No.):

  • 242 - Mauskopf (ED New York)
  • 293 - Jones (WD Washington)
  • 294 - Aycock (ND Mississippi)
H.R.3093 - Commerce, Justice, Science - to be the legislative business tomorrow, with the intention being to complete it tomorrow. That would wrap up the week, and permit start of the October recess for most Senators, before Friday.

Looking to resumption of action in November, Senator Reid said his goal is to finish all appropriations bills by November 16th. Senator McConnell says there will be great cooperation from the Republicans to accomplish that action by that deadline.

19:36: The Senate stands adjourned unto 9:00 a.m. Thursday.


This is a heavy hit on the administration.

Secret U.S. Endorsement of Severe Interrogations
Scott Shane, David Johnston and James Risen

WASHINGTON, Oct. 3 When the Justice Department publicly declared torture abhorrent in a legal opinion in December 2004, the Bush administration appeared to have abandoned its assertion of nearly unlimited presidential authority to order brutal interrogations.

But soon after Alberto R. Gonzales's arrival as attorney general in February 2005, the Justice Department issued another opinion, this one in secret. It was a very different document, according to officials briefed on it, an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.

Jack Balkin: Torture Memo 2.0

UPDATE @ October 4

The Senate will take up commerce/justice appropriations this morning, following morning business which is scheduled to run from approximately 9:00 a.m. to 10:00 a.m.

H.R.3093 - Commerce, Justice, Science
House Report 110-240
House Report 110-240 Pt.2 earmarks
White House Policy Statement

Oct 4, 2007: S.Amdts. 3208-56, 3259-69

Debate of Oct 4, 2007: Part I - Part II

UPDATE @ 10:13

The baseline for debate and further amendment of H.R.3093 is a substitute amendment [#3211]. The text of the substitute amendment is not yet in the Congressional Record.

S.Con.Res.49 - adjournment resolution - passed by agreement. When the Senate adjourns, it will be in October recess [until Monday, October 15].

UPDATE @ 12:32

Senator Kennedy, using today's article in the NYT, proposes the "Torture Prevention and Effective Interrogation Act," which would limit interrogation techniques to those that are set out in the Army Field Manual, and would apply these limits to the CIA.

Kennedy on New Torture Revelations - Oct 4, 2007
Kennedy Introduces Torture Prevention ... Act - Aug 3, 2007
S.1943 - To establish uniform standards for interrogation ...

The House Judiciary Committee has demanded the controversial opinions.
House Panel Demands Secret DOJ Torture Memos
Conyers, Nadler demand letter (jpg file)

13:35: Senator Mikulski indicates that a certain amendment [NASA] will be under 2 hours of debate, starting at 2:00 p.m., and that the clearing or withdrawal of amendments should be done forthwith, because she intends to wrap up the bill by early this evening.


White House Denies Torture Assertion - WaPo

Press Briefing by Dana Perino - Oct 4


C-PAN2 crawl reporting that Senator Craig's request to withdraw his guilty plea has been rejected. That leaves the issue unsettled while he appeals the decision to higher courts. Meanwhile, Craig Vows to Stay Despite Court Loss.


14:51: Senator Murray brought up, and had passed, S.742 - the "Ban Asbestos in America Act of 2007" [Bill text and Debate]

15:40: Wilson to seek Domenici's seat - The Hill

17:02: Coburn #3243 Tabled 61-31.


The New York Times reports

Mr. Leahy also said his committee would hold confirmation hearings on the nomination of Michael B. Mukasey to be attorney general on Oct. 17.

17:29: The Senate entered executive session to take up judicial nominations, including the nomination of Jennifer Elrod to the 5th Circuit.

18:29: Jennifer W. Elrod - confirmed to the 5th Circuit on a voice vote
18:30: Roslynn Renee Mauskopf - confirmed to ED New York on a voice vote
18:30: Richard A. Jones - confirmed to WD Washington on a voice vote
18:31: Sharion Aycock - confirmed ND Mississippi on a voice vote

The Senate then resumed legislative business.

Two measures to be placed on the calendar tomorrow:

S.2152 - SCHIP do-over
H.R.2740 - Contractor accountability (think "Blackwater")

19:32: The Senate stands adjourned until 9:30 a.m. Friday. Friday is to be a pro forma session, with no business conducted. Upon conclusion of Friday's session, the Senate will be in recess until 2:00 p.m. October 15th, at which time it will have one hour of morning business, followed by resumption of consideration of H.R.3093 - commerce appropriations. The next vote is expected sometime between 5:00 and 6:00 p.m. Monday, October 15th.

  • Inouye S.Amdt.3214, to establish a fact-finding Commission to extend the study of a prior Commission to investigate and determine facts and circumstances surrounding the relocation, internment, and deportation to Axis countries of Latin Americans of Japanese descent from December 1941 through February 1948, and the impact of those actions by the United States, and to recommend appropriate remedies.
  • Biden S.Amdt.3256, to appropriate an additional $110,000,000 for community-oriented policing services and to provide a full offset for such amount.
  • Brown S.Amdt. 3260, to prohibit the use of any funds made available in this Act in a manner that is inconsistent with the trade remedy laws of the United States.

UPDATE @ October 5

Competing SCHIP do-over proposals:

  • Lott's S.2086 - SCHIP Extension Act of 2007, which will fully fund the current program for 18 months (introduced 9/24, endorsed 10/4 by Senator Allard, bill is in Committee on Finance)
  • McConnell's S.2152 - Text unavailable (introduced 10/4, endorsed by 18 GOP Senators on 10/4, bill is on the Senate legislative calendar)

In the "master of the obvious" category, Craig Poses Dilemma for GOP Colleagues - AP

David Freddoso at NRO has selected some snippets from the Heller brief in the Parker case. (DC gun possession restrictions). SCOTUSblog comments on Heller's brief, Court urged to hear D.C. gun case, includes a link to the brief. The brief is outstanding.

UPDATE @ October 6

A couple of items relating to detainees and the CSRT process, h/t SCOTUSblog.

Chief war crimes prosecutor quits reports a culmination of a dispute in the chain of command. Air Force Col. Morris D. Davis resigned after his formal complaint about Gen. Hartmann's "interference" in GTMO cases was rejected. A NYT article, War-Crimes Prosecutor Quits in Pentagon Clash describes the substance of the "interference" from Hartmann (perhaps driven by his superior, Susan J. Crawford). (Dispute Stymies Guantanamo Terror Trials - WSJ : 9/26/07)

Lyle Denniston's article, A new critique of Pentagon detainee panels reports an unnamed Army major declarant, who alleges flaws in the CSRT process, similar to the allegations made in the Abraham declaration. The article includes a link to the declaration, and is well worth the effort to obtain and read.


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