Thursday, November 01, 2007

Senate November 2007

November. As good a reason as any to start a new post, even though it's mid-week. The Senate has completed action on most of what it started this week, with SCHIP (H.R.3963) being the item of discussion for the balance of the week, regardless of how the SCHIP debate concludes.

Maybe the Senate will agree to cut the 30 hours of post-cloture debate short, and thereby actually vote on (or agree to) move to the formal consideration of SCHIP, before 1:00 a.m. on November 2nd. Either way, there won't be much time to consider SCHIP, assuming the motion to proceed carries, before the intended time of Monday's getting on to "the farm bill."


As predicted, Senate panel OKs sea treaty - that being the Law of the Sea Treaty (T. Doc.103-39). Four senators voted against moving the LOST out of committee: DeMint, Coleman, Isakson, and Vitter.


H/T Howappealing, Susan Ethridge, writing for The New York Times in Nominees Stand May Avoid Tangle of Torture Cases, does a good job of exploring the pickle Mukasey is in, on the subject of the legality waterboarding.

Marty Lederman's counterpoint, Judge Mukasey and the Groucho Marx Principle is an entertaining read - although he elsewhere hints that he's not disagreeable with my interpretation of the recently passed US statute (Public Law 109-366), that waterboarding can't be prosecuted as a war crime, under US law.

Marisa Taylor's Attorney general nominee's confirmation may now be in doubt covers the "Will Mukasey be voted out of Committee?" question (yes, he will be, I predict).

She notes in her article that "waterboarding ... involves pouring water on a prisoner's face to trigger the gag reflex." That's true, but misleading. The water that is poured on the face continues on, to the lungs. But this does not produce a serious and long-term harmful effect, either physical or mental (and the pain involved at the moment is not excruciating) - hence finding waterboarding does not cross the threshold that results in being punishable as the war crime of "cruel and inhuman treatment."

A separate section of the statute states that "cruel and inhuman treatment," as understood under the eighth amendment to the US constitution, is illegal. Waterboarding may well be illegal under this section. But there is no penalty associated with violating this section of the law. It's merely advisory in nature, much like a "sense of the Senate" resolution. Cake and eat it too. Smoke, mirrors, etc.


Bush appointee Judge Dennis W. Shedd, one of the ten judges rehearing the al-Marri case in the Fourth Circuit, recused himself. News reports explain that one of Judge Shedd's clerks was involved in a lower court hearing of the al-Marri case. Now the panel comprises nine judges.

Regardless of the opinion of the Fourth Circuit sitting en banc, the case will be appealed to the Supreme Court. Depending on which side prevails at the Circuit Court level, the Supreme Court may, or may not grant certiorari.

I think the eventual ruling will be that the president lacks the power to impose indefinite detention on legal immigrants or citizens, without charge, regardless of Congressional authorizations to use force. Either the Fourth Circuit reaches that conclusion, or SCOTUS does. Another distinction in the case is the extent of presidential power to shift an individual's detention and due process from a civilian court system to a military court system.

More article links:

al-Marri v. Wright - Case 06-7427 - June 11, 2007 Opinion (800 kb pdf)

When reading Judge Hudson's very solid dissent (plaintext), keep in mind that the administration transferred Padilla out of the military court system and into the civilian court system, thereby avoiding a Supreme Court hearing and decision on the power of the executive to hold without charge. And too, that the defendants in ex parte Quirin, 317 U.S. 1 (1942) were charged and executed under military jurisdiction, not held indefinitely without charge. The timeline for the Quirin defendants runs from a June 13, 1942 landing on US soil to August 8, 1942, when six of the eight were executed.

Marty Lederman speculates in "al-Marri Redux--Don't Forget: It's All About the Coercive Interrogation" that the reason al-Marri was transferred from civilian to military jurisdiction was to facilitate enhanced interrogation (perhaps primarily isolation). I don't buy that -- but I do think that the administration may have felt insecure that the civilian legal process would result in conviction.


10:03: Senator Reid vaguely threatens that the Senate will be in session over the weekend, if necessary, to handle SCHIP. He also says that there is some word of an alternative "compromise" SCHIP measure, but that it hasn't emerged from whatever negotiation process it is involved in.

10:04: Senator McConnell notes that the IRS has urged Congress to act to repeal the Alternative Minimum Tax before December, otherwise 50 million Americans will be subjected to it. Following that, he chides the Democrat leadership for misplaced priorities and failure to pass important legislation.

10:08: Senator Reid rises to make a rare rebuttal. His first thrust is that "It's easy to criticize, but criticism just lowers public opinion of Congress." His second thrust is "We did too get important matters well handled." From the detailed nature of the rebuttal, I have the sense that he was prepared for this moment. I think this morning's back and forth was roughly choreographed in advance.

10:14: Senator Reid specifically raises Mukasey's refusal to state that waterboarding is torture.

10:16: Senator McConnell says, "It's not too late for this Congress to get a better record. We can start with passing appropriations bills, bridge funding (supplemental appropriations) for the military, and confirming an Attorney General." And after a brief concurring opinion by Senator Reid, the Senate moves into morning business.

10:42: Senators Inhofe and Baucus engage in a series of back and forth on a list of tax measures (under the constitution, revenue bills can't originate in the Senate in any event). Baucus gets impatient after objecting to about the sixth tax-related bill that Senator Inhofe proposed to introduce and pass. I missed the first [it was S.2184], but here is what I did pick up: S.2185, S.2233, S.2216, S.2217, S.2247, S.2234 and S.2264. Senator Baucus says all of these will be encompassed in a tax-extender package, to be taken up before the end of the year. Back to quorum call.


A healthy point-counterpoint ...

President Bush: They have not been able to send a single annual appropriations bill to my desk, and that's the worst record for a Congress in 20 years.

President Bush Urges Congress to Pass Appropriations Bills


The Congress never actually passed a budget for the last fiscal year either. Republicans dragged their feet on all the budget bills except Defense and Homeland Security in 2006, and when they took control this January the Democrats decided to just give up on the rest of the budget and pass a year long continuing resolution.

And you know what? It's not so bad. Without intending it, the Democrats actually passed a fairly disciplined pseudo-budget. ... why not just pass another year-long CR that, like the last one, grows the government only a little and keeps earmarks and new spending to a minimum?

Budget Limbo - NRO - Yuval Levin


12:42: Senator Reid suggests three modified parliamentary procedures to expedite taking up, and then disposing of SCHIP.

The first being to agree to take up SCHIP now (instead of waiting to 1:00 a.m. to vote on the motion to proceed), to set the bill aside until 4 p.m. Monday, that there be a 5 p.m. cloture vote on Monday; if cloture is invoked, that there be 2 hours of debate and amendment (instead of allowing the 30 hours of post-cloture debate), followed by voting on the underlying bill. Senator McConnell objected to this.

The second being to agree to take up SCHIP now, but that SCHIP not be taken up again until after disposition of "the farm bill," H.R.2419. The result being that SCHIP as constituted under H.R.3963 would be the business of the Senate, but not debated until sometime around mid-November.

The point of these two procedures, according to Senator Reid, would have been to allow time for the various players (House, Senate and White House) to negotiate a mutually-agreeable compromise built on H.R.3963.

The third being to agree to take up SCHIP now, immediately file a cloture motion on the underlying bill, take the cloture vote on the underlying bill at 4:45 p.m. today (instead of waiting for the one day layover), if that cloture motion passes, to immediately vote on the underlying bill (instead of allowing the 30 hours of post-cloture debate). All of the above to be done without amendment. This is agreeable with Senator McConnell.

12:53: The motion to proceed to SCHIP is agreed to, the cloture motion on the underlying bill is filed. Looks like Friday will be a day off, or introduction of debate on "the farm bill," along with post mortem speeches for SCHIP as constituted under H.R.3963.

In simple terms, the Senate is about to reject House-passed H.R.3963. The Democrats agreed to a 60 vote hurdle for passage of the House bill. The GOP senators who voted in favor of limiting debate on taking up the bill did so with the idea the bill could be amended. Without the possibility of amendment, cloture on the bill itself will certainly fail.

Ding-dong the SCHIP is sinking. Or something like that.


Colby Vokey, the US Marine attorney who was assigned to the case of Frank Wuterich (a Marine charged for certain events that occurred in Haditha, Iraq), is resigning effective May, 2008, ostensibly upset with the legal system operating at GTMO. Maybe it's just sour grapes because his defense of Omar Khadr isn't going well. Then again, maybe not.


President Bush Previews War on Terror Speech

Q: What is your own view about waterboarding?

THE PRESIDENT: I'm not going to talk about techniques. There is an enemy out there. I don't want them to understand -- to be able to adjust one way or the other. My view is this: The American people have got to understand the program is important and the techniques used are within the law, and members of the House and Senate know what I'm talking about, they have been fully briefed.

President Bush Discusses Global War on Terror at The Heritage Foundation.


Senator Lieberman supports the confirmation of Mukasey, and finds Mukasey's stand relating to waterboarding to be much like the Senate's - has it both ways, it's repugnant, but it would be irresponsible to declare it illegal.


17:10: Motion to invoke cloture on H.R.3963 - SCHIP, was PASSED on a 65-30 vote.
GOP Aye votes: Alexander, Bond Coleman, Collins, Corker, Domenici, Grassley, Hatch, Hutchison, Lugar, Murkowski, Roberts, Smith, Snowe, Specter, Stevens, Sununu

My prediction of rejection on a 58-38 margin proved to be wrong. There were plenty of GOP senators who appear to support the House bill without amendment.

Next vote, and the last vote of the week, will be on passage of SCHIP. No vote on Monday, unless there is an objection to proceed to "the farm bill," in which case there will be vote on a cloture motion on the motion to proceed to "the farm bill."

17:39: H.R.3963 - SCHIP, was PASSED on a 64-30 vote. (Senator Dodd is the "difference" between this vote and the vote on the cloture motion)

Now President Bush can veto SCHIP a second time, this bill being worse than the previous one. WH Policy Statement says, unequivocally, will veto, underlined and all.

Or maybe there is NOT a veto in the works -- not just yet. As a matter of procedure, it will be interesting to see if Congress dawdles on sending the bill to the White House. The Senate did not amend the House bill at all, so there is no justification for a conference to negotiate differences. But I thought I heard Senator Reid describe something in the nature of a conference, and indicating that what will eventually be sent to the White House will be "acceptable." If it's acceptable to the White House, it has to be different from what the Senate just passed.

The Roll Call Votes Summary Page mislabels the SCHIP votes as being on Support for Injured Servicemembers Act

  • 00403 01-Nov H.R. 3963 On Passage of the Bill Passed H.R.3963; Support for Injured Servicemembers Act
  • 00402 01-Nov H.R. 3963 On the Cloture Motion Agreed to Motion to Invoke Cloture on H.R.3963; Support for Injured Servicemembers Act
  • 00401 31-Oct H.R. 3963 On the Cloture Motion Agreed to Motion to Invoke Cloture on the Motion to Proceed to Consider H.R.3963; Support for Injured Servicemembers Act

19:48: The Senate stands adjourned until 10:00 a.m Friday.

November 2

Senator Reid on handling the H.R.3963 version of SCHIP ...

I went and met with a number of House Republicans trying to move forward on the children's health initiative. It is my recommendation that this bill will be sent to the President. If he vetoes the bill, it is my recommendation--I will express my feelings to the Speaker--that we not even attempt a veto override.

My Republican colleagues--this is difficult for me to be talking about: I should not say "difficult." It is unusual for me to be talking about my Republican House colleagues. But they indicated that would be the very best step forward. We are very close to being able to do a bipartisan, bicameral children's health bill. I think we can really do that. I have spoken to the Speaker. She believes that is the case, also. If we can do that, at the earliest opportunity, we will bring that back for consideration of the Senators.

[Later] One of the things that very well could happen is that the House may not send the bill to the President for a while--the bill he says he is going to veto--to give the negotiators more time to see if they can come up with something. That is certainly something I think would be a wise thing for the House to do. Since we got the suggestion from Steny Hoyer, I am sure it is very wise. So that is one thing the House may do.

Knowing the bill would not get out of Congress, even if passed, would explain the willingness of some Republicans to vote AYE on a bill that they would reject, if not amended.


Senator Leahy had printed in the Record, the formal request for sequential referral of S.2248, FISA amendments, to the Judiciary Committee. The request is dated October 31. The time the proposed bill can be in a Committee based on a sequential referral is limited to 10 days. [S.Res.400 of the 94th Congress].

A bit of light coverage, including a hint that Senator Specter might be reluctant to grant amnesty to telecommunications firms, can be found in Ellen Nakashima's Washington Post article, "Roadblock for Telecom Immunity."

The bill will be taken up at the Committee's November 8 Executive Business Meeting.


That would be the day after the Senate Judiciary Committee takes up the nomination of Mukasey, who is making quite the news splash.

The votes in Committee and in the full Senate will be fairly close, which is unusual for an AG nomination. The closest ever vote on an AG nominee was John Ashcroft, at 58-42, with Alberto Gonzales coming in second at 60-36.

I'll try to maintain this list, as I become aware of firm positions on the part of Judiciary Committee members. But even in the unlikely event that a majority of the Committee is against the nominee, the nomination can, and probably would be sent to the full Senate. In the full Senate, as to whether or not a majority of votes cast will be for the nomination, I think the answer is "yes," Mukasey will be confirmed. He might take over Ashcroft's "first place" as being the greatest attractor of NAY votes.

           Joseph R. Biden, Jr.         AGAINST
           Benjamin L. Cardin           AGAINST
           Richard J. Durbin            AGAINST
           Edward M. Kennedy            AGAINST
           Dianne Feinstein             FOR
           Russell D. Feingold          AGAINST
           Herb Kohl                    Nov 3 - Noncommittal*
           Patrick J. Leahy             AGAINST
           Charles E. Schumer           FOR
           Sheldon Whitehouse           AGAINST

           Sam Brownback                FOR
           Tom Coburn                   FOR
           John Cornyn                  FOR
           Lindsey Graham               FOR
           Charles E. Grassley          FOR
           Orrin G. Hatch               FOR
           Jon Kyl                      FOR
           Arlen Specter                FOR
           Jeff Sessions                FOR


Yesterdays WH presser was mostly about the Mukasey nomination.

Orin Kerr is critical of President Bush's criticism of the Senate, in "Oh, Please." The comments are entertaining.

It's a disappointment when the question of "what constitutes cruel and inhuman treatment" breaks down on party line. It shouldn't, and one side or the other is off the mark. I suppose this is part of the pendulum swinging attribute of politics, where positions are adhered to just to stay on the team. That is, individuals adopt positions without serious regard for a principle other than "being on the politically winning side." Nobody will admit this, both sides (politicians and their followers alike) accuse the opposition of blind party obedience.

Not that the nomination should rise or fall on that one question - but I find it troubling when the government acts in an opaque way, on what could safely be aired for public criticism. I was against the nomination of Harriet Miers, for example, at first because of difficulty in discerning her judicial temperament (i.e., the nomination of an unknowable cipher). Likewise with Mukasey. I think he's a good guy, but this administration demands opacity in governance, so he's stuck with that (opacity) baggage on all matters where the administration asserts "executive privilege" and "state secret."


As if it's needed, more evidence that Congress is "slow on the uptake." Paper ballots worked reliably for many years, and the uncertainty risks obviously inherent in paperless voting were SHOUTED to the boneheads in Congress. Did they listen? Hell no. They rarely do. Playing catch-up now ...

Introduction of S.2295 - Voter Confidence and Increased Accessibility Act of 2007

Our bill will require all voting machines--beginning in the 2008 election--to produce a paper record of each ballot that can be verified by the voter before a ballot is submitted to be counted. This also is the first bill to propose a nationwide ban, by 2012, on the use of touch-screen voting machines in Federal elections.

The proposed bill is lengthy, probably has a number of objectionable requirements. But reliability of audit trail is a no-brainer important and reasonable expectation. I'm not surprised in the least that our fearless betters encouraged, by statute, inadequate vote auditability; and are now backfilling.

Printing out of a vote receipt (paper record - to be kept by the voter) is not a solution. The solution is simple. Paper ballots, marked by the voters, and public oversight of all handling of ballots. Automate the counting of the paper ballots if efficiency directs, but the paper ballots remain the original, durable, and auditable, authoritative record.

What constitutes a legal voting process under the U.S. Constitution and federal law?


Read the first time, and placed on the calendar, but no text available ... By Mr. KYL (for himself, Mr. GRAHAM, Mr. CORNYN, Mr. MARTINEZ, Mr. SESSIONS, Mr. SPECTER, and Mr. MCCONNELL): S. 2294 - A bill to strengthen immigration enforcement and border security and for other purposes.

I wonder what common ground that group of Senators found on the issue of immigration. Kyl, Cornyn, Graham and Martinez having fairly radical "open borders" position records, and Senator Sessions being at the other end of the immigration and borders spectrum.


John Daniel Tinder was voted favorably out of the Senate Judiciary Committee, to be a Circuit Court Judge for the Seventh Circuit. I predict Tinder will be the very last Circuit Court nominee out of the Senate Judiciary Committee this year. Still pending in Committee: Keisler, Kethledge, Murphy, Conrad, Haynes, Stone, Getchell and Matthews.

Senator Leahy

Today, our agenda includes the nomination of John Daniel Tinder for a lifetime appointment to the Court of Appeals for the Seventh Circuit. I acknowledge the support of Senators Lugar and Bayh, and want to thank Senator Durbin for chairing the hearing on this nomination.

His will be the sixth circuit court nomination the Committee is considering this year. If he is favorably reported and then confirmed by the Senate, we will have matched the total number of circuit court nominees confirmed for 2001. We will also have exceeded the totals achieved in all of 2004 when a Republican-led Senate was considering this President's circuit nominees; all of 1989; all of 1983, when a Republican-led Senate was considering President Reagan's nominees; all of 1993 when a Democratic-led Senate was considering President Clinton's nominees; and, of course, the entire 1996 session during which a Republican-led Senate did not confirm a single one of President Clinton's circuit nominees.


Next up in the Senate (formally, Monday afternoon):

H.R.2419 - Farm, Nutrition and Bioenergy Act
House Report 110-256
White House Policy Statement


10:06: Senator Reid notes that the Senate will be in morning business today, no votes. Also that he anticipates a presidential veto of the Water Resources Development Act (WRDA), which will be subjected to a veto override vote.

Next two weeks will be important, but difficult, in part due to a time crunch. He thinks the Senate may be in session next weekend, to get at least three appropriations bills (Labor/HHS, Military Construction, and Defense), a continuing resolution, and perhaps a "bridge fund" (Emergency Supplemental) for activity in Iraq. All needing to be done between Tuesday the 6th and the end of the following week.

And the first item on the agenda for next week? "The farm bill." Add it to the pile.


A counterpoint to the al-Marri "held in a military brig without charge" case, Curt Anderson of the AP reports "U.S. Rests Case in Terrorism Trial," regarding the Liberty City Seven (aka "Miami Seven," aka "Karate Seven"), a group that is accused of plotting to topple the Sears Tower in Chicago.

Left hanging, in my mind at least, is a question about US action against the Moorish Science Temple and Sultan Khanbey.

Take note, paintball seems to be a common training device for would-be terrorists. (See "The Miami Plot to Bomb Federal Buildings" - the NEFA Foundation (100 kb pdf))


12:20: The Senate stands adjourned until 2:00 p.m. Monday.

--- 14:35 ---

According to various rumor-mill sources, Senator Leahy intends to vote against the nomination of Mukasey. Without seeing Senator Leahy's rationale, I think it will be multi-dimensional rather than predicated solely on the vague answer to the "is waterboarding illegal" question.

The AP confirms, in Sen. Leahy to Oppose Mukasey for AG, and the Statement Of Sen. Patrick Leahy ... On The Nomination Of Michael B. Mukasey ends up being one dimensional.


Whoa! In the AIPAC case, "Rice to Face Subpoena in Espionage Case" is a pretty big event.

--- 16:54 ---

Drama over. NRO Reports Feinstein and Schumer will vote AYE on Mukasey, so he'll be voted out of Committee, and from there, approved by the Senate.

AP updated their report (and headline) accordingly, "2 Key Dems to Support AG Nominee Mukasey."

--- 20:05 ---

Hosted at FAS, the November 1 CRS study "National Strategy for Combating Terrorism: Background and Issues for Congress has some jaw-dropping paragraphs.

First, a sterile introduction to the subject material of the critique of "The Strategy."

    On September 5, 2006, the White House released the 2006 National Strategy for Combating Terrorism (NSCT or "Strategy"). The 2006 NSCT complements the National Security Strategy of the United States, released by the White House in March 2006. Subsequently, on May 31, 2007, the Bush Administration released a public diplomacy strategy that addressed the issue of counterterrorism and set up a rapid response counterterrorism communications center. In June 2007, the Administration released a National Implementation Plan (NIP). The document, according to press reports, designates lead and subordinate agencies to carry out a multitude of tasks to include destroying Al Qaeda; enlisting support from allies; and according to press reports, designates lead and subordinate agencies to carry out a multitude of tasks to include destroying Al Qaeda; enlisting support from allies; and training experts in foreign languages and cultures with emphasis on gaining a better understanding of Islam. Its overarching goals reportedly are to (1) defeat terrorism as a threat to America's way of life as a free and open society, and (2) create an environment inhospitable to terrorism worldwide.

    The White House subsequently released an updated (second) National Strategy for Homeland Security on October 9, 2007. It is described as "a companion to the [2006] National Strategy for Combating Terrorism," since both strategies include sections on preventing and disrupting terrorist attacks that are complementary and reinforcing. In addition, unclassified key judgments of National Intelligence Estimates that address issues relevant to counterterrrorism strategy, were released by the Administration in April 2006, January 2007 and July 2007.

    The 2006 National Strategy for Combating Terrorism Strategy follows on an earlier strategy released by the Bush Administration in 2003. The 2006 Strategy differs from the 2003 document in a number of strategic and tactical areas. This report examines the 2006 National Strategy in the context of its predecessor in 2003, and identifies issues and options for consideration by Congress.

I'm just going to pick a few of the jaw droppers ... not at random, obviously I'm trying to get the reader's attention and pique some interest in reading the whole thing.

    The focus of the Strategy is primarily the terrorist threat from radical Islam. However, there may be potential threats from groups or individuals aligned with other extremist causes or ideologies. Some wonder whether the emphasis on a single front in the war on terror might leave the country vulnerable to surprise attacks from groups that have been overlooked.


    The Strategy does not include a discussion and contingency plan for a scenario in which one does not "win." In such a scenario, one might choose to opt to measure "victory" -- or progress -- in terms of acceptable losses rather than triumph. Few would contend that there has been complete triumph in the war on drugs or the war on crime, for example, despite decades of effort and countless billions of dollars spent. It is therefore possible, perhaps even likely, that the war on terror may have a similar long-term outcome: stalemate -- whether against decentralized, well- funded terrorist adversaries with formidable resources and weaponry or against isolated cells of homegrown extremists.


    There is heavy emphasis in the 2006 Strategy on democratization as a means of countering terrorism. Viewed in the context of the mixed success of fledgling democracies in Iraq and Afghanistan and the persistence of autocratic regimes among U.S. allies in the Middle East, the credibility and effectiveness of this strategic thrust may merit scrutiny. ...

    Also at issue is the question of whether democracy, in and of itself, can stabilize a nation, given the troubling growth in numbers and influence of radical groups in some democratic countries. Skeptics argue that the burgeoning popularity of extremist and terror-linked groups, such as the Mujaheddin Council in Indonesia, the Party Islam in Malaysia, the Islamic Courts Union in Somalia, Hizballah in Lebanon and the democratically elected Hamas party in Gaza, would seem to indicate that democracy per se does not entirely dissuade or discourage the ideology of terrorism. The rise of these parties in democratic societies presents a major foreign policy dilemma for the United States, since it pits U.S. support for democracy directly against U.S. commitment to combat terrorism aggressively.

November 4

New Detainee Rights Weighed in Plans to Close Guantánamo - Todd Heisler/The New York Times

This article describes measures that the administration might use to moot the Boumediene case, or at least render the substantive issues of underlying appeal (which is about the process of finding and challenging "illegal enemy combatant") to be in a state of flux that makes a Court ruling premature or "on a process that no longer exists. The administration is considering giving terrorists access to courts (a form of habeas) without being force to by SCOTUS.

One paragraph describes an administration requirement as "need[ing] legislation allowing detainees deemed to be a threat to be held until the end of hostilities in the war on terror, even if they were not charged with war crimes." That amounts to lifetime detention, since the war on terror won't end until human civilization is extinct.

Here's a short commentary with news links on conducting a trial in secret, to prevent an accused terrorist from communicating with cohorts.


The political situation in Pakistan is tense: US calls Pakistan emergency rule declaration 'setback for democracy'. The headline writer for Matthew Pennington at the Washington Times pens "Pakistan on edge of abyss."


Senator Feingold to vote against the confirmation of Mukasey for Attorney General.

November 5

The Senate is scheduled to open at 2:00 p.m., and at 3:00 p.m. to take up (no votes Monday afternoon):

H.R.2419 - Farm, Nutrition and Bioenergy Act
House Report 110-256
White House Policy Statement

First up will be introduction of a substitute amendment, the text of which is not presently available online.

Other action for the two weeks before Thanksgiving recess:

Press Briefing by Dana Perino - October 23, 2007

Q On the war supplemental, given that Democrats say they won't take it up till next year, the President wants it by Christmas ...

Q I know the President wants this done by Christmas, but in the meantime, DOD appropriations has a $50 billion bridge fund in it. So would the President support that bill?

MS. PERINO: What we would like is full funding out of the supplemental. We think that's the best way to go. Kicking the can down the road is not a good way to steer the taxpayers' money.

See also the FISA amendment package. S.2248 (text) will emerge from the Judiciary Committee before the Thanksgiving recess, and may obtain a hurried weekend passage (to limit public attention and debate), much as the Protect America Act did.

My gut reaction to John Ashcroft's editorial on the subject of of granting immunity to the telecoms.

14:15: Senator Reid describes a busy week. WRDA override perhaps Wednesday. Conference report on Military Construction appropriations will be out later this week, President Bush has said he would veto this.

There won't be an open amendment process on "the farm bill," in the interests of getting everything done. Senator Reid says he thinks that if cloture was filed now, to limit debate on "the farm bill," that the legislation would come out fine. He doesn't plan to file cloture now, but I won't be surprised to see a cloture motion filed tomorrow.

14:25: Senator Cardin announces his position with respect to the confirmation of Judge Mukasey, after describing the extensive meetings and dialog. Based on concerns about independence, particularly on the legality of waterboarding, he will vote against the confirmation. Why not, it's a "free" no vote.

15:20: The substitute amendment for "the farm bill" is S.Amdt.3500. The title, "Food and Energy Security Act," gives a clue as to the scope of the legislation.

18:58: The Senate stands adjourned until 10:00 a.m. Tuesday.

November 6

An interesting debate is developing over CFIUS and the Foreign Investment and National Security Act of 2007.

Foreign business gets a Bush assist - Bill Gertz (Wash. Times)

A draft presidential order on foreign investment in U.S. companies would limit government security reviews ... The draft order is opposed by the Defense, Justice and Homeland Security departments as contrary to the intent of a law created in response to the uproar that killed a bid by a United Arab Emirates company to operate several U.S. ports.


The government filed its expected appeal to the September ruling by Judge Marrero, that found the National Security Letter aspect of the USA PATRIOT Act to be unconstitutional.

Feds Fight Ruling on Security Letters - Larry Neumeister (AP)

The government provided notice of its appeal in a one-paragraph letter to the court and later had no comment. ... Marrero stayed the effect of his ruling so it could be appealed.

This blog contains my earlier observations, comments and links on this case in September 6, 2007 and September 7, 2007 entries. Additional commentary:

Concurring Opinions: Some More Thoughts on the NSL Gag Order Case and the First Amendment
Volokh: Revised Nondisclosure Provisions of NSL Authority

National Security Letters were before Judge Marrero and the Second Circuit once before. See above links for the outcome and portions of the appellate court's legal rationale.


10:22: In his opening comments, Senator Reid indicated that the conference committee will combine the Labor/HHS and Military Construction/VA appropriations bills into a single conference report. When the combined bill comes to the floor of the Senate, a Senator will raise a point of order against the combination. If 60 votes can't be marshaled to overcome the point of order, the Senate will peel off Labor/HHS and send it back to the House, which will shortly after pass Labor/HHS appropriations standing alone. President Bush has said he will veto this bill.

The Continuing Resolution will likely be attached to the Defense Appropriations bill, as was done last year by the Republicans. He expects this to be done this week.

He indicates that he suspects Republicans will stall action on "the farm bill," in protest for not being able to offer amendments. Even if the Republicans do stall action, Senator Reid said he won't file a cloture motion on "the farm bill" until next week at the earliest.

Senator McConnell makes a pitch for peeling off Military Construction/VA, which President Bush is willing to sign. This particular "game of guts" between Congressional Democrats and President Bush is over 9 billion dollars of spending in the Labor/HHS appropriations bill.

10:44: Judge Mukasey is voted out of the Judiciary Committee on an 11-8 vote.

Senator Cornyn is touting the reduction in violence in Iraq, especially around Baghdad. Is the reduction attributable to "the surge," or is it in part the result of Sadr orders Mehdi Army ceasefire (See too Sadr calls six-month ceasefire)?

It might be in the terrorists interest to create the impression that the surge is working. The sooner "the invader" perceives success in imposing its will, the sooner "the invader" reduces its presence of force in the region.

11:40: Senator Reid asks consent to limit amendments on "the farm bill," and the Republicans object. Senator Reid says he wants to avoid not just irrelevant or tangential Republican amendments, but also irrelevant or tangential Democrat amendments, such as on the Iraq war, labor rights, and other themes. He further justifies limiting the amendment process as a matter of necessary expedience; and that all majority leaders, Democrat and Republican alike, face the issue of "open v. closed" amendment process.

11:50: "The farm bill" is formally taken up, and Senator Reid files S.Amdt.3508 (amending the substitute amendment, S.Amdt.3500), asks for a roll call vote on that amendment, then files second degree S.Amdt.3509 -- filling the amendment tree relating to the substitute amendment.

Senator McConnell notes past handlings of "the farm bills" have been extended, even though majority leaders tried to provoke early conclusion with either early cloture motions, and usually involving 20 or more votes on amendments and procedural maneuvers. He says that Republicans will get to an open amendment process on this bill "one way or another," implying that after awhile, Senator Reid will have to pull the farm bill from consideration.

Senator Reid resumes action, S.Amdt.3510 is filed against the underlying bill, with S.Amdt.3511 second degree amendment closing that procedural avenue for Republicans to air amendments. Finally, he files a motion to commit the bill with instructions to report the bill back with S.Amdt.3512 as the substitute, with S.Amdt.3513 amending THAT substitute and S.Amdt.3514 as a second degree amendment. This seems like procedural overkill, but as far as I know, necessary to close off ALL procedural devices that might be used to introduce amendments. Usually, filling the amendment tree comprises only first and second degree amendments to the pending bill.

Senators Gregg and Reid debate the meaning of "unanimous consent," as in any single Senator can prevent the pending amendment from being set aside. Senator Gregg says that means Senator Reid has ultimate control over whether the amendment process moves forward. Senator Gregg goes on to note that usually, the Senate has a fairly free-wheeling amendment process on "complex bills like this." No doubt true, but the visible aspect of the process always includes unanimous consent to set the pending amendment aside -- it's the back room deals that are free-wheeling.

I'd sure like to know the substance of the Republican amendments that Senator Reid is fighting off, if any. "Farm bill" seems to be a traditional venue for lengthy and topically-varied debate, and expecting a quick turnaround on the committee-produced starting point may be as unrealistic as obtaining a quick turnaround on comprehensive immigration reform.

Senator Gregg indicates a desire to introduce estate tax, and notes that global warming and labor (especially immigrant labor) issues are very relevant to farming; which defies Senator Reid's sense of the issues that are relevant to farming. Senator Gregg is very wound up over this bill being handled under a closed amendment process. "Steamed" seems about right.

12:28: Senator Kyl echos Senator Gregg's point, noting that filling the tree may be suitable for a bill of narrowly tailored impact and scope; but to do so on a bill of wide-ranging scope and import is inappropriate.

The text of S.Amdt.3500 is available - it runs 1.9 Mb of plain text. It is wide ranging, and includes such "relevant" items as tax policy for broadband access, establishing a "Carbon Sequestration Capability Panel," special allowance for cellulosic biomass ethanol plant property, establishing a "Congressional Bipartisan Food Safety Commission," grants for biorefineries (plants to fuel), and the "Food for Peace Act" (worth a chapter of discussion on its own right, this covers 20+ federal programs including the well-known Foreign Assistance Act of 1961 and The Horn of Africa Recovery and Food Security Act).


Senator Schumer seeking a confluence of waterboarding and FISA ...

Dragging Out The Torture Debate - Massimo Calabresi (TIME)

Schumer in particular has been arguing for a vote on an amendment authored by Massachusetts liberal Teddy Kennedy that would outlaw waterboarding. ... his allies say he believes a vote on Kennedy's amendment can pass if it is attached to a bill reforming domestic eavesdropping being considered by the Judiciary committee this week.

I recall being critical of Senator Kennedy when he last tried to make a legislative statement about waterboarding, and he lumped it in with forced nudity. That amendment was soundly rejected. Don't look for any adjustment in the currently bipolar statute, waterboarding is illegal, but not punishable under law.

November 7

Abu-Ghraib back in the news. Some two year old background, commentary about the applicability of the Alien Torts Claim Act and Senator Feinstein's proposed amendment to it, followed by a current news report that the prisoners get their day in court plus a link to Judge Robertson's Opinion.

How Would [Senator Feinstein's Now-Withdrawn Statute Limiting Non-Citizens' Tort Claims] Have Affected Abu-Ghraib-Related Civil Suits?
Anthony J. Sebok - Oct. 31, 2005

Mr. Sebok's analysis refers to Ibrahim v. Titan Corp., 391 F.Supp.2d 10 (2005)

Judge allows abuse lawsuit against firm - Lara Jakes Jordan (AP) - Nov. 6, 2007

CACI and Titan argued that as military contractors, they should be protected by federal laws that shield the government from lawsuits filed as a result of military activities during a time of war. In an earlier ruling, Robertson said he would consider that defense as long as the contractors could prove that their employees at Abu Ghraib "functioned as soldiers in all but name."

A CACI site manager, however, said he was routinely involved with his interrogators' mission plans and had daily conversations with the military officer overseeing the interrogations, to see "how my people were doing or not doing." Robertson said that indicates CACI was supervising its employees.

A web page that summarizes the general history and background of this case by the far-left Center for Constitutional Rights, Saleh v. Titan, includes a link to yesterday's Opinion:


A break from the pending business of "the farm bill" as the Senate handles a conference report that combines Labor/HHS and Military/VA appropriations. The House passed the conference report on a 269-142 vote (not veto proof) at 10:49 p.m. yesterday.

A UC agreement details the Senate action, which will start shortly after the joint House/Senate meeting with French President Sarkozy.

  • One hour of debate on the conference report (text of two appropriations bills as negotiated in conference) on H.R.3043, with time divided equally between Senators Harkin, Reed, Specter and Hutchison
  • Two hours of debate under the control of Senators Reid and McConnell
  • Senator Hutchison to make a "scope" point of order under Rule XXVIII
  • Senator Harkin to move to waive application of Rule XXVIII
  • One hour (or less) of debate on Harkin's motion to waive
  • If Hutchison's point of order is sustained (if Harkin's motion to waive obtains less than 60 votes)
    • Senator Coburn to move to "suspend the rules." I think this is a detailed substantive motion, including amendment to remove the Military Construction/VA material from the conference report.
    • 30 minutes of debate on Coburn's motion to suspend
    • If Coburn's motion to suspend is adopted, Coburn's amendment is agreed to and the Senate immediately votes on the conference report as amended. I.e., votes on Labor/HHS appropriations standing alone, and sending that back to the House
    • If Coburn's motion is rejected, the Senate immediately votes on the conference report containing both Labor/HHS and Military Construction/VA appropriations.
  • If Harkin's motion to waive obtains 60 or more votes
    • A cloture vote on Thursday, to limit debate on the conference report containing both Labor/HHS and Military Construction/VA appropriations.
Stripping Military Construction/VA appropriations from the conference report requires fewer than 60 Senators supporting Harkin's motion to waive Rule XXVIII, AND a majority of Senators voting to adopt Coburn's motion to amend the conference report.


A relevant insight to tomorrow's Senate Judiciary Committee Meeting on FISA amendment, Ellen Nakashima's article in the Washington Post, "Former Technician 'Turning In' AT&T Over NSA Program," describes Mark Klein's observations of AT&T hardware in San Francisco. Rather than address the substance of his observations at AT&T facilities, I'll just note that Mr. Klein admits to being a war protester in 1969, and leave it at that.


Steven Aftergood reports on the government's case against two AIPAC employees in "AIPAC Court Adopts Silent Witness Rule." It's an interesting report that covers several facets of the case and the trial process. "Silent witness" is shorthand for parts of the evidence to be presented outside of public view, which is unusual in a criminal trial.

I thought this brief description of the elements of the conspiracy count was interesting, and as far as I can tell, because of the state of mind (mens rea) hurdles, it makes conviction on the conspiracy charge nigh impossible.

The government must prove beyond a reasonable doubt that... the defendants (i) knew that the information ... was NDI, i.e. knew that the information was closely held by the government and that the disclosure of the information would be damaging to the national security, (ii) knew the persons to whom the disclosures would be made were not authorized to receive the information, (iii) knew the disclosures the conspiracy contemplated making were unlawful, (iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures.


10:37: Senator Reid indicates that the appropriations matter outlined above will begin shortly after noon (12:15 or thereabouts, exact time subject to the call of the chair). Following that action, the Senate may proceed to a veto-override vote on the Water Resources Development Act (WRDA).

He also indicated that he has been in discussions with Senator McConnell on handling the amendment process for "the farm bill."

Farm bill, circa 2002:
The Farm Bill Charade - Richard Lugar (NYT - Jan 21, 2002)
2002 Senate Farm Bill Proposals -
The Farm Bill - PBS Online NewsHour - May 8, 2002

Senate action on S.1731 in the 107th Congress (which evolved into passing H.R.2646 - the Farm Bill of 2002) obviously involved an open amendment process. See, for example, Senator Smith's S.Amdt.2596, to provide for Presidential certification that the government of Cuba is not involved in the support for acts of international terrorism as a condition precedent to agricultural trade with Cuba. The summary list of amendments considered reveals how "some things haven't changed."

The 2002 farm bill was under consideration from Dec 6 to Dec 18, 2001, and by December 19, two cloture motions to limit debate on the substitute amendment were rejected (one of those two cloture motions being voted on twice, the second time on a motion to reconsider). The bill was set aside until February 6, 2002, followed by about an additional week of amendment and debate before the Senate version was sent to conference.


Bill Gertz continues reporting on the proposed Executive Order implementing provisions of P.L. 110-49 (a recent law codifying CFIUS), in "Security review changes panned".

The White House Policy Statement on H.R.556 indicates some concerns about the reach of Congress into Executive prerogative.

I wonder if Dubai Ports World has managed to divest itself of all its holdings in the US. The February 2007 article, "Ports Deal Could Fail, Say Top Execs," indicates a hangup on transfer of the port of New York/New Jersey from DPW to AIG. A Feb 15 Port Authority Letter seems to indicate the hangup would be resolved.

Longer term and bigger picture perspective of the same player (DP World) in the Oct 24, 2007 article, "Middle East flexes its muscles as DP World gets set to sail."


16:40: Senator Harkin's motion to waive Senator Hutchison's Rule XXVIII "scope" point of order was REJECTED on a 47-46 vote (60 votes being needed to waive the point of order)

The language that was the subject of the point of order (Military Construction/VA appropriations) was stricken.

Senator Coburn waived his right to move to suspend the rules, and the Senate moved directly to voting on Labor/HHS appropriations standing alone, and sending that back to the House.

17:01: The motion to recede and amend the Labor/HHS appropriations conference report was PASSED on a 56-37 vote. The amended conference report will be sent back to the House.


17:09: Senator Reid formally makes the veto override on the Water Resources Development Act (WRDA) the pending business of the Senate.

November 8

Senator Coburn's "suspension of rule" under the Labor/HHS - Military Construction/VA appropriations was to add an amendment. Coincidentally, Senator Ensign had exactly the same proposal. The amendment would prohibit funds from this appropriation from going to the Bethel Performing Arts Center.

The text of the conference report (Labor/HHS appropriations language), as sent back to the House, is embodied in S.Amdt.3557.

The Senate will continue the WRDA veto-override matter this morning, with 30 minutes of debate starting at about 10:45 a.m., followed by the veto override vote.

At some point during the day, there may be news about handling of "the farm bill."

09:52: Senator Reid said the WRDA veto override vote will start around 11:40 a.m.

H.R.3222, the Defense appropriations conference report, including a Continuing Resolution, is expected to clear the House this afternoon, and Senator Reid hopes to have the Defense appropriations voted out of the Senate before the end of today.

Senator Reid also said he has been working with Senator McConnell on an agreement for time and timing of bringing the Mukasey nomination to the floor of the Senate, that agreement had been nearly worked out, but that no agreement has been finalized.


Manu Raju of 'The Hill' reports, Specter floats compromise on FISA telecom immunity, "I think it's very important that the courthouse not be closed so there can be a judicial determination to see if there have been any violations of privacy rights ... think the telephone companies were good citizens, and should not suffer from what they did. And my idea is to have the government substituted as the party."

In the end, none of this changes the outcome. The administration will successfully assert "state secret," regardless, and the public will be kept in the dark as to the true extent the country operates as a "surveillance society." If the judiciary is involved, it will accede to the assertions it is told to accede to, be they statutory immunity or dismissing the case with the government being the substitute party. The only issue at play is efficiency at reaching the end point, i.e., removing the issue from contention by taking away the power of the people to challenge the government's surveillance conduct.

As far as the Senate goes, I think the solution will be as stated in the Intelligence Committee's markup, statutory retroactive immunity. Feinstein Pushing Hard For Telco Immunity, and she's on the Judiciary Committee.


12:09: President Bush's veto of WRDA was OVERIDDEN on a 79-14 vote. The House overrode the President's veto yesterday.


I missed this story entirely. A military prosecutor refused to prosecute suspected terrorist Mohamedou Slahi, a high-value detainee who is alleged to have helped recruit several of the Sept. 11 hijackers. Lt. Col. V. Stuart Couch has been forbidden to testify to a House Judiciary subcommittee. Some additional background at "The Conscience of the Colonel."


Senator Brown again beating up on Nancy Nord (acting head of Consumer Products Safety Commission) and again used the ceramic mug having 39,000 ppm lead as an example of a dangerous product, against a "standard maximum of 600 ppm." The figures he is citing are completely irrelevant. The question for a fired ceramic piece isn't "how much lead," it's how much "Leachable Lead."

The [FDA] guideline levels for lead leaching from ceramic ware are being reduced as follows:

  • from 7 to 3 parts per million (ppm) for plates, saucers, and other flatware
  • from 5 to 2 ppm for small hollowware such as cereal bowls, but not cups and mugs
  • from 2.5 to 0.5 ppm for cups and mugs
  • from 2.5 to 1.0 ppm for large (greater than 1..1 liters) hollowware such as bowls, but not pitchers
  • from 5 to 0.5 ppm for pitchers
But says Senator Brown, "Acceptable levels of lead, according to the Consumer Product Safety Commission, are 600 parts per million for adults." Well, obviously there is some reason for the radical disparity, because 600 ppm leachable lead is NOT acceptable. Not even close!

CPSC Announces New Policy Addressing Lead in Children's Metal Jewelry - February 3, 2005


19:47: 5 hours of time has been allocated to consider BOTH, the nomination of Mukasey, and Defense appropriations. Votes to happen around midnight, unless time is yielded back by one or both sides.

21:26: Senator Specter notes that only Senator Graham remains to speak under time under Specter's control, and that after Graham's short speech, he (Specter) intends to yield back all his time. He speculates the vote to confirm Judge Mukasey may occur as early as 10:30 p.m. or so.

Senator Schumer indicates that the primary reason he supports the nominee is that the Justice Department, a "crown jewel" of our government, is in bad (politicized) shape, and that he believes Judge Mukasey will do a better job undoing that damage than a "caretaker" would. Senator Schumer diverts his speech from concerns over torture, to concerns other issues such as the replacement of US Attorneys and prosecutorial discretion.

23:04: Confirmation vote for Judge Michael Mukasey started.

23:25: Judge Mukasey was CONFIRMED as Attorney General on a 53-40 vote.
DEM Aye votes: Bayh, Carper, Feinstein, Landrieu, Lieberman, Nelson (NE), Schumer
Not Voting: Alexandr, Biden, Clinton, Cornyn, Dodd, McCain, Obama

AG Nomination - Confirmation NAY Votes

  • John Ashcroft - 42 (16 vote margin)
  • Michael Mukasey - 40 (13 vote margin - WINNER!)
  • Alberto Gonzales - 36 (24 vote margin)

If Biden, Clinton, Dodd and Obama had voted, Mukasey might have clinched 43 NAY votes and first place.

James Patrick McGranery

Looking for nominees with the fewest AYE votes, President Truman nominated a yes-man cover-up artist to be his fourth Attorney General. James Patrick McGranery was confirmed on a 52-18 vote in May 1952. He resigned at the close of Truman's term, on January 20, 1953. McGranery revoked the re-entry permit of Charlie Chaplin when he was accused of Communist sympathies. (Wikipedia).

Howard McGrath, TIME Magazine's April 25, 1952 piece, "Exits & Entrances" is a great peek into the the dismissal of McGranery's predecessor, Howard McGrath. "What advice did he have for his successor? 'A fine man ... I have suggested that he ought to supply himself with an asbestos suit.'" McGranery was contentious, in part because of his association with "the Amerasia case," and in part due to his personal reputation.

From another quarter came an even sharper attack; Philadelphia District Attorney Richardson Dilworth, a fellow Philadelphia Democrat, predicted: "The regime of McGranery will be marked by incompetence, bias, favoritism and ward politics at its worst."

First I've heard of the Amerasia case. A websearch turns up a review of the book "The Amerasia Spy Case: Prelude to McCarthyism," and the review is fascinating. Although the review is skeptical of the book as a scholarly historical work, because it takes the FBI raw material as factual without seeking corroboration. Read the whole review ... it's worth it.

Besides exposing the blunders and machinations that kept the Amerasia case from coming to trial, prevented some of the defendants from being punished at all, and saved even Jaffe and Larsen from anything more than fines, Klehr and Radosh also document extensive endeavors to cover up the mistakes and misdeeds that led to these results. They reveal that in an attempt to hide what had gone on in 1945 and 1946, high officials of the FBI and the Department of Justice dissembled before congressional committees and that one of them, Attorney General James McGranery, committed perjury during his confirmation hearings.

And from another review of the same book:

Klehr and Radosh are the first researchers to have obtained the FBI files on the Amerasia case, including transcripts of wiretaps on the telephones, homes, and hotel rooms of the suspects, and they use this material to re-create the actual words and actions of the defendants. They reveal that Philip Jaffe, a longtime Soviet sympathizer, was indeed in touch with Soviet intelligence and that he attempted to use John Stewart Service, a prominent State Department "China Hand," as an espionage source. However, there is no evidence that Service, the most famous defendant, was aware of Jaffe's intentions; he believed he was participating in a leaking operation to discredit American supporters of Chiang Kai-shek.

The authors also reveal that a cover-up designed to hide the leaking did indeed occur, orchestrated by Thomas Corcoran, a prominent New Dealer. Corcoran worked through Tom Clark, the attorney general of the United States, and James McGranery, a future attorney general, to ensure that the grand jury did not delve too deeply into the case. J. Edgar Hoover, who knew about the cover-up, used his knowledge to threaten McGranery with exposure. Klehr and Radosh conclude that the refusal of many liberals to believe that the Rosenbergs or Alger Hiss had actually spied was, in part, conditioned by the peculiar circumstances and outcome of the Amerasia case

The web of history is simply amazing. This may help tie things together a bit more. Not that it's relevant to Mukasey, but it sure is relevant to show that some things never change, like government self-preservation and cover-up at the expense of its people -- and the presence of powerful yet invisible forces that are really in charge of running affairs.

Many believed something suspicious was happening, and after China fell to the Communists the suspicion deepened into the understandable belief that high officials in the State Department had betrayed Chiang and hobbled the prosecution of the Amerasia case. McCarthy's accusations about a cover-up appeared credible to many, even those who were uncomfortable with his tactics. Although the cover-up was engineered at high levels of the Attorney General's office, not the State Department as McCarthy charged

Much Ado about Something - Ernest B. Hook '56 (Oberlin High School)

See too, Owen Lattimore and the "Loss" of China - Chapter 24. This includes the section of McGranery's confirmation hearing testimony that I suspect represents the commission of perjury.

The web doesn't end there. Judge McGranery testified before the House Judiciary Subcommittee in May, 1953. From TIME Magazine of May 25 of that year, "Questions for Justice Clark"

McGranery's frankness startled the committee. In three important and controversial cases in Justice in 1945-46, he testified, normal procedure was upset and his office was bypassed. The only person who could have arranged the bypassing was Tom Clark. One case was the Kansas City vote-fraud scandal in the 1946 Democratic primary, in which there was no prosecution despite ballot-box stuffing, dynamiting and theft of evidence. Another was the famed case of the left-wing Amerasia magazine, which was caught with a file full of Government documents (some of them top-secret). No one involved went to prison.

Who was Tom Clark? Wikipedia says ...

Appointed Attorney General by President Harry Truman in 1945, Clark was appointed to the court in August 1949, filling the vacancy left by the death of Frank Murphy. Truman later came to regret his choice; he remarked to a biographer many years later that "Tom Clark was my biggest mistake." But, he insisted: "It isn't so much that he's a bad man. It's just that he's such a dumb son of a bitch."

Read on, in the Wikipedia entry. The reason for Truman's attitude is that Mr. Clark as AG advised President Truman that he could legally seize the steel mills, and Justice Clark (same guy, now on the Supreme Court) found the seizure unconstitutional.

It gets better. Just read the piece.


23:25: The Defense appropriations and continuing resolution conference report (H.R.3222) passed on a voice vote (took all of about 5 seconds).

Senator Reid announced that the first vote next week will start at 10:10 a.m. Tuesday morning.

Senator Durbin's requests to proceed to the following bills, at a time to be determined by majority and minority leaders, were objected to:

  • S.1233 - Veterans Traumatic Brain Injury Rehabilitation Act of 2007;
  • S.1315 - Disabled Veterans Insurance Improvement Act of 2007; and
  • S.2168 - Identity Theft Enforcement and Restitution Act of 2007.

23:39: A long weekend is underway. Nomination of Judge Robert M. Dow Jr. (N.D. Ill.) to be the order of business Tuesday, with the confirmation vote to start at 10:10 a.m. Friday (tomorrow) will be a pro forma session - no business. Monday is a federal holiday, Veterans Day.

November 9

I'm sure I'm not alone in finding Congress to be totally hypocritical in its lambasting of Yahoo for allowing the Chinese government to secretly pierce internet user privacy, while simultaneously lauding companies that help the United States government accomplish exactly the same objective.

It's funny hearing Congresspeople complain that the Chinese government is overbroad in asserting "state secret," and urging private companies to NOT cooperate with the Chinese government when it makes broad search requests -- in light of Congress passing laws that provide for warrantless National Security Letters, and arguing that it's the patriotic duty of companies to comply with requests from the government. He's not in Congress, but for the "patriot duty" sentiment, see John Ashcroft's OpEd praising AT&T for its cooperation, and suggesting that the government, not AT&T, is the only valid judge as to the legal and proper scope of a government-issued snooping order.

The jailed Chinese dissident was passing government documents. Perhaps the penalty is too stiff in China, but there are plenty of people in the US who think the disclosure of the Terrorist Surveillance Program, for example, should be punishable, as it disclosed a state secret. The US government, in numerous court cases, formally asserts that the existence of that program was a state secret.

Prepared statements before House Foreign Affairs Committee:


H/T Howappealing, the Khadr military commissions trial got started yesterday, and almost immediately hit a pothole. The prosecution disclosed, for the first time, five year old evidence that is potentially exculpatory to a finding of "unlawful enemy combatant."

Both the articles are good reading. A couple of paragraphs from Carol J. Williams's "Terror case could turn on eyewitness" (LA Times) ...

Khadr was the only one of four enemy fighters surrounded and bombarded by U.S. forces who survived the July 27, 2002, attack. There were no known witnesses to him throwing the grenade that killed Army Sgt. 1st Class Christopher J. Speer, and the Pentagon has never disclosed details of how investigators concluded Khadr threw it. ...

[Presiding Judge] Brownback also conceded it would be unwise to push ahead with a combatant status hearing when the federal appeals court had yet to rule on the commissions' jurisdiction over Guantanamo detainees.

More on the story at SCOTUSblog, "War crimes trial delayed at opening." "[Judge Brownback] set Dec. 7 and Jan. 11 deadlines for filing new motions and recessed the proceeding just over two hours after beginning today's session."

Decks Are Stacked in War Crimes Cases, Lawyers Say - NYT

[Khadr's defense attorney] Commander Kuebler noted that the judge had barred the defense from raising challenges at this stage of the case to the constitutionality of the military commission system. He added that the judge had told him in a closed-door meeting that he had taken a lot of heat after issuing one of the rulings in June that stalled the commission cases. Pentagon officials and a White House spokesman said they disagreed with the June rulings.

[Military Commission Judge] Colonel Brownback, clearly irritated, said he had not intended Commander Kuebler to disclose that conversation but said, I never said anyone who had any influence over me said anything.


A mishmash of senatorial remarks on the Defense appropriations conference report:

McCAIN: There are over 2,000 earmarks in this year's Defense Appropriations conference report and its accompanying Statement of Managers, with 24 earmarks added outside the scope of conference.


ENZI: I rise to express my opposition to the conference report ... There is more than $50 million worth of projects being slipped in this so-called CR [Continuing Resolution].


McCASKILL: I will vote today in opposition ... I can not vote in support for the final House-Senate conference report because it contained $59 million in earmarks that were added during the closed-door conference negotiations. One of those earmarks was for $3 million to fund a golf center that is in the name of the congressman who requested it. ...

I thought we had made real progress with the passage and enactment of S.1, the ethics reform bill, that requires far more transparency and disclosure on earmarks than there has ever been. Unfortunately, I have since discovered there are still some gaps in the ethics bill that need to be filled.

One of which has to do with the difficulty of raising a 60-vote point of order on earmarks added during appropriations conference negotiations. S.1 says that we can do that. But in reality, we really can't. Most of these added funding earmarks are contained in the Joint Explanatory Statement of Managers, which, technically, isn't part of the conference report bill text. What that means is we can't raise a point of order against those earmarks to strike them out of the bill.

Let me give me you some perspective on what we are talking about. The Defense appropriations conference text was 133 pages long. The Joint Explanation of Managers--470 pages long. The JES as they call it, contains all of the earmarks, all kinds of substantive direction and is three times as long as the official conference report, and it is not subject to a point of order? This is wrong. It's not what I believe most of us thought would escape the oversight rules of S. 1 when we voted for it. At the very least, it seems disingenuous in how we sold this bill to the American public as a way to clean up our taxpayer-funded shop and how we do business around here.


The Senate debate on the confirmation of Judge Mukasey contains a significant amount of impassioned rhetoric, and is worth your time to at least skim through.

I also added, upthread, historical reference relating to the "unpopular" nominee of 1952, which I found somewhat interesting.


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