Halloween Recess - 2007

Oh. No Halloween recess? The faux-spooks, faux-gremlins and pretend actors are in session? Okay. My speculation on the Senate schedule ...

H.R.3043 - Labor and HHS Appropriations is the order of business starting this afternoon, with a final vote on passage expected sometime tomorrow. There is a stack of 11 pending amendments (not counting the substitute), some of which will be disposed of by roll call votes. Due to my inattention, I can't discern the exciting from the mundane in this bill, nor can I summarize any particular Labor/HHS issues to be on the lookout for.

Senator Reid has indicated that the nomination of Leslie Southwick to the 5th Circuit Court of Appeals will be brought up this week. I think the handling of that nomination will be a bellwether for the disposition of pending and future Circuit Court nominations, including three (Keisler, Kethledge and Murphy) that are being quietly thrown under the bus by the GOP and DEMs working in tandem.

Under the radar, a bit, is reconciliation between the House and Senate versions of the Insecure Source of Energy Bill, whereby the US further entrenches its dependence on foreign oil via increasing taxes and regulatory burdens on domestic production of oil.

Pretty much "on the public radar" is the urge to give the telecom companies a free pass on privacy violations, and otherwise reduce the quaint and outdated notion that privacy should be guarded by the legal system. That issue is moving in Senate Committee (now Judiciary), and proposed legislation might move to the floor before the Senate adjourns sine die (end of the 1st session, sometime in early December).

Mukasey's nomination as Attorney General won't come out of the Judiciary Committee this week, I don't think, as Senator Leahy is holding out for written answers to the "is waterboarding cruel and inhuman?" and other questions that won't be given straight, unequivocal answers.

Bills that are kicking around, "near the top" it seems to me, include Senator Durbin's DREAM Act (S.2205), some sort of Press Shield (privilege against giving testimony) legislation (H.R.2102 and S.2035), and the handful of bills that represent spending authorization and appropriation. At some point in the near future, the bills that are now in conference will be coming back to the floor for votes on the conference reports.

Senator McConnell recently spoke on extending the moratorium on directly taxing the internet, and H.R.3678 - Internet Tax Freedom Act is another item that might be brought up soon.

The AP Reports President Bush will request an addition $46 billion in emergency supplemental war funding. Was it last year that Senator McCain said he thought all the Iraq war spending could and should be "on budget" instead of put in the "emergency - off budget" bucket? LOL. The never-ending emergency. It reminds me of my household budget.

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Either the government or the jury, depending on ones bias, screwed up the Holy Land case in the Northern District of Texas. The jury returned guilty verdicts on very few of the 197 counts against six defendants. I haven't followed this case closely, except to research the contention that Patrick Fitzgerald was involved in giving the defense classified material in error. Hey, that's the ticket, blame Fitzgerald for the outcome!

"DRJ", guest posting at Patterico's Pontifications, has a concise and accurate summary of the verdict at Verdict in the Holy Land Foundation Trial.

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Senator Reid summarized the schedule as he sees it. He comments with regard to the Emergency Supplemental Appropriations request that is forthcoming, and with regard to the SCHIP veto. He ties these two items together as representing a failure of US government --- err, make that a failure of President Bush.

Senator Reid's opening comments include discussion of FISA, and he indicates a need to modernize and visit the statute. "There is no contradiction between security and liberty," says he. He characterizes the PAA as "flawed," and indicates that Senators will be able to review the proposed statute -- and that the Judiciary Committee has the right to mark-up the proposed legislation that emerged from the Intelligence Committee.

He indicates that the administration is wrong to stonewall requests for documents that are necessary for oversight. He quotes from Dana Perino's press conference of last week, where disclosure of documents was, per the administration, conditioned on agreement to incorporate immunity in the proposed legislation. Senator Reid says it is wrong to impose conditions (deal making) for disclosing the historical record of surveillance orders and legal opinions that support them.

He says he'd like to move on this legislation before Thanksgiving. We'll see.

In general, he's doing a hard sell on the bill as it emerged from the Intelligence Committee. He has no specific complaint against the bill, and reads snippets of the immunity and sunsetting language.

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October 23

The Labor/HHS Appropriations bill won't be done before the 12:30 recess, but will probably be done by the end of the day. Ten amendments are pending, and a unanimous consent agreement provides for a series four votes this morning. Enzi #3437, DeMint #3387, Roberts #3365, and Coburn #3358.

Enzi's #3437: Notwithstanding any other provision of law, no funds shall be made available under this Act to modify the HIV/AIDS funding formulas under title XXVI of the Public Health Service Act [Ryan White Care Act (RWCA)]. See April 2006 report by the GAO: Changes Needed to Improve the Distribution of Funding for a clue as to why this is contentious -- the states (New York and California in particular) are fighting for bigger slices of the federal handouts.

DeMint's #3387: Beginning on page 4, strike line 22 and all that follows through line 7 on page 5, and insert the following: "workers:
Provided further, That $3,700,000 shall be for competitive grants, which shall be awarded not later than 30 days after the date of enactment of this Act". The text being replaced:

workers:
Provided further, That $1,500,000 shall be for a non-competitive grant to the AFL-CIO Working for America Institute, which shall be awarded not later than 30 days after the date of enactment of this Act: Provided further, That $2,200,000 shall be for a non-competitive grant to the AFL-CIO Appalachian Council, Incorporated, for Job Corps career transition services, which shall be awarded not later than 30 days after the date of enactment of this Act;

Roberts's #3365: [$5,000,000] For carrying out the small business child care grant program under section 8303 of the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act, 2007 (42 U.S.C. 9858 note)

Coburn's #3358: (b) Notwithstanding any other provision of this Act, none of the funds appropriated or otherwise made available by this Act may be used for any congressionally directed spending item, as defined by Sec. 521 of Public Law 110-81 [The earmark reform section of the recently-passed legislative transparency bill, S.1], until the Secretary of the Department of Health and Human Services certifies that all children in the U.S. under the age of 18 years are insured by a private or public health insurance plan.

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Lucky guess on my part, that Durbin's DREAM Act would perk to the top. Democrat leadership filed a cloture motion to limit debate on the motion to proceed to the consideration of S.2205, with the cloture vote nominally scheduled for Wednesday morning. I expect to hear debate on this "immigration related" bill today.

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Over in the House, the Congressional Black Caucus is unanimously opposed to the nomination of Leslie Southwick to the Fifth Circuit Court of Appeals [Page H11825-30]. Mr. Thompson extended his false accusations and racist remarks at Page E2197.

No word from the Senate side of the Congressional Record as to timing of going into executive session for the purpose of considering the nomination. I'll go along with the vast bulk of interested observers that the filing of a cloture motion to limit debate is most likely. On the other hand, if they can get the votes, a direct defeat of Southwick would be better for the Democrats, than reopening the issue of stiffing executive nominations from the floor of the Senate with less than majority opposition.

I figure there will be a cloture motion because either the Democrats don't have 50 votes in opposition, or there is at least one solo Democrat who has a need to distinguish him or herself as being opposed to this nomination, perhaps Senator Feinstein for example, after she voted the nomination out of committee.

Fox News Reports Vote Expected This Week on Judge Southwick, "The Senate is headed for an extremely close vote Wednesday ..."

If the nomination involves a cloture motion, the earliest cloture vote on the nomination would be Thursday, unless the Senate agrees by unanimous consent to waive the one-day layover prescribed under Senate Rules.

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At NRO, Stanley Kurtz reports, "John Bolton has been quietly lobbying Republicans to oppose the administration's nuclear agreement with North Korea." Maybe it's for the better (for the administration) that the Senate refused to vote on his nomination to be US Ambassador to the United Nations.

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Jonathan Adler, at Volokh Conspiracy, covers one aspect of energy "independence" in Ethanol: "Neither Renewable Nor Reliable".

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11:57: Enzi #3437 was PASSED on a 65-28 vote.
12:17: Coburn #3358 was TABLED on a 68-26 vote.
12:36: DeMint #3387 (as modified) was TABLED on a 60-34 vote.

Senator Kerry obtained agreement to pass #3398, $5 million dollars for NIOSH to carry out a Firefighter Fatality Investigation and Prevention Program.

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Speaking on behalf of the White House, Dana Perino expresses frustration at the delay in moving the Mukasey nomination out of the Judiciary Committee. I think I heard her say that the written followup questions haven't been submitted yet.

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Letter from Senators Leahy and Specter asking for warrantless surveillance related documents, reinforcing and reiterating comments made by Senator Reid yesterday.

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President Bush on the Emergency Supplemental Request
(White House label: Global War on Terror Supplemental)

One reason Congress can move the supplemental quickly is that it's had more than eight months to study most of the provisions. In fact, nearly 75 percent of the funding requested in the supplemental was submitted along with my annual budget in February.

--- Happy United Nations Day Eve! ---

Keep an eye on Antarctica. Countries that sign on to the UN Convention on the Law of the Sea have 10 years after their ratifications of that treaty to make claims on minerals ("oil") on their extended continental shelf, and for some countries, e.g., Chile, that extended continental shelf reaches Antarctic waters.

17:01: Senator Reid congratulated Senator McCaskill on 100 hours of time presiding over the Senate, and said "you're the first one to have reached that milestone this year." How soon he forgets. He personally recognized Senator Klobuchar for exactly the same "Golden Gavel Award" Friday last week! Senator Reid also recognized Senator Whitehouse on his reaching the 100 hour (Golden Gavel) waypoint, on August 3rd.

Correction: Mumbles Reid said, "Mr. REID. Madam President, the hour of 5 o'clock has arrived, and the occupant of the chair has now presided over the Senate for 100 hours. That is commendable. The Senator is the fourth to have done it this year."

17:43: A long-winded UC agreement reciting 11 amendments plus a vote on a motion to commit the Labor/HHS Appropriations bill, followed by (assuming the motion to commit is defeated) a vote on passage of the bill, conference with the House, etc.

Southwick Cloture Vote - Wednesday 11:00 a.m.

Following that, the Senate would take up the Southwick nomination. A cloture motion will be filed at that time, and waiving the usual time requirement between filing of the cloture motion and voting on the cloture motion, that cloture vote (on the Southwick nomination) would occur at 11 a.m. tomorrow morning. There would be 6 4 hours of debate before that vote, 2 hours today, and 4 2 hours tomorrow. If cloture is invoked, the Senate would immediately vote on the confirmation. If cloture is not invoked, the nomination would be returned to the executive calendar.

Following "disposal" of the Southwick nomination, the Senate would proceed to the cloture vote on the motion to proceed to Senator Durbin's DREAM Act.

There being some minor detail (I think relating to Labor/HHS appropriations), Senator McConnell withheld consent ... at 17:48, still waiting for agreement with the above general outline. At 17:50, whatever issue may have existed is disposed of, and the Senate proceeds to execute the steps outlined in the UC agreement.

• Cardin #3400 PASSED on a 92-0 vote.
• Ensign #3342 PASSED on a 91-3 vote (Hagel, Lugar, Martinez).
• Ensign #3352 PASSED on a 92-2 vote (Hagel, Lugar).
• Vitter #3328, as modified, PASSED on a voice vote
• Dorgan #3345 WITHDRAWN
• Bingaman #3440, as modified, PASSED on a 88-6 vote.
• Kennedy #3433, as modified, AGREED TO shortly after UC agreement was reached
• Grassley/Sanders #3396, as modified, PASSED on a voice vote
• Schumer #3404, as amended by Durbin #3449, PASSED on voice votes
• DeMint #3450 Re: 1st class air travel AGREED TO
• Chambliss #3392 WITHDRAWN
• GOP motion to commit (to kill the bill, basically), was REJECTED on a 40-54 vote.
• The motion to commit being rejected, the Senate agreed to #3325, the substitute amendment, as amended
• H.R.3043 - Labor/HHS Appropriations bill PASSED on a 75-19 vote (veto-proof).

Then the Southwick nomination, starting this evening, with the cloture motion to be filed tonight, and voted on tomorrow at around 11:00 a.m. A minor disconnect in the timing, I don't believe it's possible to conduct 4 hours of debate tomorrow morning, before taking the 11:00 a.m. vote.

Correction: The time for debate is 4 hours TOTAL, with 2 hours available on Tuesday the 23rd, and 2 hours on Wednesday the 24th.

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Democrat members of the Senate Judiciary Committee have submitted a single question to Mukasey.

Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S Law, including treaty obligations?

It's impossible to give a responsive answer to that, without "getting into trouble." I predict a non-responsive answer, with justification for being evasive. That can only mean that Mukasey holds that waterboarding is maybe a legal interrogation technique. Ball back in Democrat's lap.

I believe that the recently-passed Military Commissions Act "legalized" waterboarding, or removed it as a war crime as a matter of statutory construction. Section 6 of the war crimes statute as amended in September 2006 refers to 18 USC 2340 for the definition of "severe mental pain or suffering," and draws on 18 USC 1365 to define "serious bodily injury." When it amended the war crimes statute, Congress essentially codified the Bybee memorandum.

Equating waterboarding with "the tormentor is threatening imminent death" is, I find, a misapplication of 18 USC 2340(2)(C). The tormentor is threatening waterboarding, not imminent death. The victim may think death is imminent, but not because the tormentor is threatening it. I believe the "threaten with imminent death" action of 18 USC 2340(2)(C) would be narrowly construed by a trial judge to encompass only those verbal and physical acts that amount to "I will kill you on the count of three if you don't answer ..."

There is a reason the administration insisted on (and obtained) reference to 18 USC 2340(2) and 18 USC 1365, with retroactive application. I think the reason is that those references create a direct argument that waterboarding would not result in finding an occurrence of the war crime of cruel and inhuman treatment, because the mental and physical harms due to waterboarding come short of the limits set in those statutory references.

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19:19: Action on Labor/HHS Appropriations was maintained in the list of amendments just above. At this point in time, Senator McConnell is describing the rationale for making a motion to commit, basically that the Labor/HHS appropriations bill spends too much money, and will be vetoed by President Bush.

The motion to commit is formally made by Senator McConnell on behalf of Senator Lott. The motion will be defeated.

19:29: Senator Specter will vote against the motion to commit, on separation of powers grounds. He says Congress would be abdicating its responsibility if it acquiesced to the president's budget without negotiation.

19:48: Start voting on final passage of Labor/HHS Appropriations.
20:01: The bill passed with a veto-proof majority. The Senate insists on its amendments and names conferees.

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The cloture motion to limit debate on the nomination of Southwick is filed, according to plan. Senator Leahy, not according to plan, swallowed down the wrong pipe and suggests the absence of a quorum (the Senate is full, having just finished the vote on the Labor/HHS Appropriations bill).

20:29: Senator Specter notes that Senator Feinstein will speak on the nomination, later tonight. Meanwhile, Senator Cardin, speaking in opposition to the nominee, invokes the Constitution and the fact of "lifetime appointment" as excuses for not taking an up or down vote. He's giving reasons to oppose the nominee, not reasons to shirk the expression of a binding opinion.

20:44: Senator Feinstein, relying on the ABA and Judge Southwick's extensive record, weighs in, impressed with the nominee. She also notes and applauds his military record, having joined the military reserves at age 42, after obtaining success as a lawyer.

Smells to me like passage of the cloture motion. The quid pro quo is "Murphy, Kethledge and Keisler." You won't hear of them as Circuit Court nominees ever again -- not that their nominations have obtained much attention anyway.

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More on hiding the FBI's threat to Higazy. Where are the defenders of keeping "state secret" that the FBI threatens the torture of family members in order to obtain confessions?

21:07: Senator Feinstein closes down the Senate, in a thoroughly professional fashion. After comments from Senators Lott and Brownback, the Senate will stand adjourned until 9:00 a.m. tomorrow.
21:28: Senator Salazar formally adjourns the Senate.

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October 24

Two cloture votes this morning. The first on limiting debate on the nomination of Leslie Southwick to take a seat on the 5th Circuit Court of Appeals, and the second on whether or not to limit debate on the motion to proceed to Senator Durbin's DREAM Act. There is to be 20 minutes of debate on the motion to proceed to the DREAM Act, after disposing of the Southwick nomination.

10:50: I've half listened to the speeches. The Democrats focused on fabricated negatives regarding the nominee, but interestingly, the Republicans not only defended the nomination, they also covered the "process" ground and claimed to reject the need for 60 votes to obtain a confirmation. I don't doubt the sincerity of those who brought it up, but I think that for the Senate as a whole, pining for a return to majority votes for contentious nominees is lip service.

11:27: The cloture motion to limit debate on the nomination of Leslie Southwick to the 5th Circuit Court of Appeals, was PASSED on a 62-35 vote.
DEM Aye votes: Akaka, Byrd, Carper, Conrad, Dorgan, Feinstein, Inouye, Johnson, Lieberman, Lincoln, Nelson (NB), Pryor, and Salazar

11:43: Leslie Southwick's nomination to the 5th Circuit Court of Appeals was CONFIRMED on a 59-38 vote.
DEM Aye votes: Akaka, Byrd, Conrad, Dorgan, Feinstein, Johnson, Lieberman, Lincoln, Nelson (NB), and Pryor

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Senator McConnell objects to the terms of debating the DREAM Act, in that amendments won't be allowed, or at least the majority will cherry pick amendments. Senator Durbin has been negotiating with several Republicans, Senator Hutchison in particular, and she personally thinks the subject of the DREAM Act is worth pursuing. I have a feeling the cloture motion on the motion to proceed will obtain 60 votes. Senator Hutchison is not one of the usual handful of Republican immigration doves, that is, she's an additional crossover in favor of relaxing immigration.

Senator Specter objects to the piecemeal implementation of comprehensive immigration, and Senator Sessions asserts that the White House has indicated it will veto the DREAM Act. Read the WH Policy Statement, it does NOT contain a veto threat. It notes opposition, but does not threaten a veto. Veto threats are usually recited in bold underline.

12:51: The cloture motion on the motion to proceed to S.2205, DREAM Act, was REJECTED on a 52-44 vote.
GOP Aye votes: Bennett, Brownback, Coleman, Collins, Craig, Hagel, Hatch, Hutchison, Lott, Lugar, Martinez, Snowe
DEM Nay Votes: Byrd, Conrad, Dorgan, Landrieu, Pryor (those Senators historically tend toward immigration hawk), Baucus, McCaskill, Tester

Senator Reid did not have a backup plan for what to proceed to, in case the DREAM Act was not taken up. He indicates that he expects to know in about an hour, meanwhile, the Senate goes to morning business.

15:02: Still in morning business. Senator Lott makes a pitch to take up the Lautenberg-Lott AMTRAK legislation -- S.294 - Passenger Rail Investment and Improvement Act of 2007. See Senator Lautenberg's press release of January this year, and a similar press release from 2005.

??:??: The Senate moved to S.294 - Passenger Rail Investment and Improvement Act of 2007 at some point while I wasn't paying any attention. The last time this was taken up, in 2005, it was passed by the Senate but dropped by the House.

18:55: Senator McConnell files a cloture motion to limit debate on S.Amdt.3452, which extends the moratorium on taxing certain aspects of the internet ("makes permanent" is just so final, and a dubious proposition).

19:45: Senator Lautenberg adjourns the Senate until 9:30 tomorrow morning. After one hour of morning business, the Senate will resume consideration of S.294 - Passenger Rail Investment and Improvement Act of 2007.

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October 25

S.294 looks to be the primary business of the Senate for the balance of the week. Sununu's #3453 is first up today, with two hours of debate followed by a vote on passage. If run according to schedule, a cloture vote to limit debate (or kill) #3452, internet tax moratorium, will be conducted Friday morning. No doubt, various other amendments (not necessarily germane to AMTRAK) will be brought up in the interim.

I don't plan to be posting any updates until the weekend, if then.

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The Senate took a brief break from the AMTRAK bill, and passed H.R.3678 - Internet Tax Freedom Act Amendments Act of 2007, extending the tax breaks on certain internet activities until 2014.

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October 29

Two cloture motions come up for vote on [nominally] Tuesday, October 30:

• On motion to proceed to H.R.3963 - SCHIP (WH policy statement - will veto. WH Fact Sheet)
• On limiting debate on S.294 - Amtrak authorization

As a matter of making a more sensible "flow" of procedure, the cloture vote on the motion to proceed to SCHIP will probably follow the disposition of the AMTRAK bill.

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Senator Rockefeller's S.2248 - FISA amendments, was introduced last week, and is on the Senate's Legislative Calendar.

Meanwhile, the Senate Judiciary Committee has scheduled an October 31 hearing on proposed FISA amendments.

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A lesser-known detainee case, Al-Marri v. Wright, briefly described and discussed at SCOTUSblog, President's power to detain in U.S. at issue.

15:13: Senator Reid, urging action on the energy bill, asserts that global warming is real; and that if the deserts of Nevada were covered with solar cells, the energy produced would be sufficient to run the entire country.

And I am Elvis Presley.

19:18: S.Res.359, congratulating the Boston Red Sox on winning the World Series.

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October 30

The Convention on the Law of the Sea will be voted out of the Foreign Relations Committee tomorrow. It is more likely than not going to be considered and passed by the Senate. The following readings from the Oct 4, 2007 hearing on Convention on the Law of the Sea give a reasonable taste of the arguments:

Senator Lugar's Opening Statement (urges passage)
Mr. Bernard H. Oxman Statement (urges passage)
Mr. Frank J. Gaffney, Jr. Statement (urges rejection)

National Review Online (urges rejection)

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Yesterday's Record contains a substantial amount of "Global Warming" talk.

Senator Reid
Senators Boxer and Cantwell
Senator Inhofe

Guess the Senator:

So to come down here and talk about the polar bear and say the polar bear is fine--A, the polar bear is not fine, and we will talk about it; but this isn't about the polar bear. This is about God's creation that is in jeopardy. We had testimony from scientists that 40 percent of the species that were created are going to be gone. Now, it is our turn to do our part. That is why I have been working so closely with the religious community, the evangelical community. They are concerned about God's creation, and we ought to be. We talk a good game about it. We talk about values. We talk about it, so let us do something to show we are willing to protect this gift from God we have been given.

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October 31 - Happy Halloween!

Predictably, Mukasey gave Democrat Senators an indefinite answer to their question, "Is the use of waterboarding, or inducing the misperception of drowning, as an interrogation technique illegal under U.S Law, including treaty obligations?" That has stirred up plenty of commentary (also predictably). Howard Bashman at HowAppealing has collected links at AG Nominee Unsure About Waterboarding and Mukasey Calls Harsh Interrogation 'Repugnant'.

A number of Democrats now object to the nominee, but the number and strength of objection doesn't appear to be sufficient to derail the nomination. At least not yet. Senator Mini-McCain (Lindsey Graham) is fine with the answer, which leads me to conclude that McCain is likewise not put off by the vague answer - despite McCain's pronouncements that waterboarding IS illegal under US law. It all depends on what one means by "illegal." It may be illegal all right, but if it can't be prosecuted as a war crime of "cruel and inhuman," then there is no criminal penalty for breaking the law.

Over at Balkinize, a comment thread without any prompting at the top, other than a link to 172 pages of answers by Mukasey.

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Another of the usual excellent set of links at HowAppealing, this one relating to detainee al-Marri, Federal Appeals Court to Hear 'Enemy Combatant' Case.

The Fourth Circuit is rehearing the case en banc, after a June 12, 2007 decision that was adverse to the administration.

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The military band at Buckingham Palace played Darth Vader's theme music to greet king Abdullah of Saudi Arabia as he arrived to meet Her Majesty the Queen. Iain Murray at NRO

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The legal question of whether or not private security operators, under contract to a non-DoD government agency, have complete immunity from prosecution for acts in a foreign country (not being under the UCMJ and MEJA as DoD contractors are, not being amenable to Iraq law, and in shooting Iraqis in Iraq, not having committed a crime under US Code) is cooking ahead at full steam. See transcript of the October 23 conference call and report of the Secretary of State's Panel (Ambassador Patrick F. Kennedy on the Report of the Secretary of State's Panel on Personal Protective Services in Iraq), which Finding VI.2 says, "the Panel is unaware of any basis for holding non-DoD contractors accountable under US law." and which Recommendation VII.2 urges "engage the DoJ and OMB, and then with Congress, to establish a clear legal basis for holding contractors accountable under U.S. law."

I just now found "The Blackwater Blogger," a left-leaning blog that has a good summary of the various lines of criminal liability to security contractors in The White Rabbit: Criminal Trials of Blackwater Contractors.

Meanwhile, State Department security convoys operating in Iraq will be placed under DoD control. A necessary move, I'd say, given the diplomatic relationship between Iraq and the US. And I think the practical difference in risk of prosecution to private security operators isn't really changed all that much, even though in theory, the lines to finding a criminal violation will be much more clear (than when the private operators are NOT under DoD control).

DoD control doesn't put the contractors under DoD hiring management, it just places the DoD in a position where it obtains situational awareness of contractor (State Department) movements. "Officials described the agreement [between DoD and DoS] as a general understanding that the military should have more oversight over how private guards operate." (NPR : Rice, Gates Agree on Rules for Iraq Contractors)

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On FISA amendment, and in particular on granting the telephone companies retroactive immunity for violation of privacy protection laws, a thought-provoking post by Marty Lederman at Balkinize, OK, Then, Senator Rockefeller. Essential reading before digging in to that is Senator Rockefeller's defense for granting retroactive immunity.

Senator Leahy is not inclined the same way that Senator Rockefeller is. See his October 31 Statement on FISA Amendments ...

A retroactive grant of immunity or preemption of state regulators does more than let the carriers off the hook. Immunity is designed to shield this Administration from any accountability for conducting surveillance outside the law. It could make it impossible for Americans whose privacy has been violated illegally to seek meaningful redress. ...

Anyone who proposes letting the telecommunications carriers off the hook or preempting state authorities has a responsibility to propose a manner to test the legality of the government's program and to determine whether it did harm to the rights of Americans.

I propose the following alternative. That the government apprise the public that invasions of personal privacy by the government cannot harm the rights of an American. I maintain that anybody who expects personal privacy as against the government (think 4th amendment) is foolish and naive. The federal government can snoop with impunity, and any law that says otherwise is nothing but sucker-bait to fool the gullible.

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The US Senate opens at noon today (so early?) and UC agreement prescribes that the vote on the motion to invoke cloture on the motion to proceed to the consideration of H.R.3963 - SCHIP, will not occur prior to 6:30 p.m.

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Live blogging of the Senate Judiciary Committee Hearing on FISA amendment.

SJC: FISA -- Protect America ... Part I
SJC: FISA -- Protect America ... Part II
SJC: FISA -- Protect America ... Part III

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12:12: Senator Reid is determined to complete SCHIP this week. I believe that depends on whether or not cloture is invoked on the motion to proceed to the bill. Following disposal of SCHIP, and specifically, next Monday, the Senate will move on to "the farm bill." It could a slow Thursday and Friday in the Senate, if cloture is not invoked on the motion to proceed to SCHIP.

12:15: Senator McConnell notices that it's been 40 some days since Mukasey was nominated, and that it was Democrats who forced Gonzales out of the position of AG. He goes on to blame the Democrats for delays in hearings, and for asking for written answers to 500 questions. A committee meeting and vote is scheduled for next week on Tuesday.

12:16: Senator Rockefeller is chaffed by President Bush's accusation that Congress is overspending. He blames President Bush for the rate of spending.

13:31: The time for the vote on the cloture motion re: SCHIP has been shifted. If I heard correctly, the new time for the vote is 3:45 p.m. -- with the vote being in effect as though started at 6:30 and completed at 6:50 p.m.

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Even if Mukasey can't answer the "is waterboarding illegal?" question, Ed Gillespie can:

... members of the United States senate have been briefed on the program and they have said that it is -- it complies with all laws ...

ROBERTS: is waterboarding legal?

GILLESPIE: The fact is that those who have been briefed on the program in the United States Senate, members of the Intelligence Committee, and others who are familiar with the program have said that it is legal. And those are the ones who have a basis to know.

CNN's American Morning, broadcast on October 31, 2007

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15:47: The cloture vote on the motion to proceed to SCHIP begins ...

16:11: The cloture vote on the motion to proceed to SCHIP passed 62-33. Cloture provides 30 hours of debate before voting on the underlying point, and the underlying point for this is the motion to take up SCHIP (not passing it, just taking it up). 30 hours from 6:50 p.m. Wednesday, notices Senater Reid, is 1:00 a.m. Friday morning. Until the Senate leadership works out details, that's the time for the voting on the motion to proceed to SCHIP.