Monday, October 22, 2007

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radar" is the urge to give the telecom companies a free pass on privacy violations, and otherwise reduce the quaint and outdated notion that privacy should be guarded by the legal system.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.


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.


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.

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:

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.


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.


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.


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.


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


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.


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.


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


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.


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.


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.


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.


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.

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


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.

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.


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.

October 29

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

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.


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.


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.

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)


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.

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.


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.


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


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)


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.


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.


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


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.


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


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.

Sunday, October 14, 2007

Columbus Day Recess 2007

Posts are apt to be few and far between ... I have a few political issues on my radar, but my attention is not going to be directed at politics for at least a few weeks.

Congressional action on FISA modification, with particular attention on retroactive immunity and the scope of Court review.

Court action on detainee cases. The eventual prognosis for the statutory CSRT procedure as applied to a range of detainees. The government is suggesting it might reconvene CSRTs in some cases, rather than risk an adverse due process ruling from the DC Circuit on previous Review Tribunal process and conclusions.

NYT: U.S. Mulls New Status Hearings for Guantánamo Inmates
SCOTUSblog: Government considers re-doing detainee cases
Chesney: CSRT redux?

CIA and administration resistance to review by Inspector General. Risk aversion at the prospect of being ruled in error ... because, as we all know, the government NEVER makes errors.


Where Blackwater and state secret cross paths: Bill on Contractor Liability Raises Intel Agency Concerns, referring to the House-passed H.R.2740.

Laura Dickinson, posting at Balkinize, composed a helpful introduction to contractor liability suits: Tort Liability for Military Contractors.
[Oct 16 - see also Immunity for Military Contractors Under Coalition Provisional Authority Order 17]

October 15

Misplaced priority of the morning ...

Sen. Craig to File Appeal - AP

Craig said. "And I wrestled with it a long while. ... I should have told my wife. I should have told my kids. And most importantly, I should have told counsel."


On nominations of all sorts, not just judicial ... Orin Kerr of the Volokh Conspiracy prompts comments with a post titled "Interim Appointments."

October 16

Will Kay Baily Hutchison join the ranks of Republican Senators announcing an intention to "resign?" She, to run for governor of Texas.

Is the Washington Post inflating the possibility that The US-India Civilian Nuclear Power Pact May be Near Collapse?

Fact Sheet: House FISA Legislation the Wrong Direction for Our National Security
WH Policy Statement (would veto the bill)


H.R.3773 - RESTORE Act of 2007
House Report 110-373: Part 1 - Part 2

October 18

Even the top insider management knew there was trouble at Justice?

Mukasey's First Dilemma? -

... when [Craig Morford] was named as acting deputy, former Attorney General Alberto Gonzales gave him a mandate to act like a chief operating officer hired to fix a company in crisis. That was one month before Mr. Gonzales resigned from the top job.


H.R.3773 - RESTORE Act of 2007, is dead. The Democratic leadership in the House has decided to drop it, after the House agreed to consider the bill. Here comes the vehicle for more retroactive immunity for breaking (some privacy) laws, it'll start in the Senate ...

Senate and Bush Agree On Terms of Spying Bill - WaPo

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

Same subject, comments from Senator Reid ...

Mr. REID. Mr. President, if I could briefly say, while the distinguished Republican leader is on the floor, I had a meeting late yesterday afternoon with the chairman of the Intelligence Committee, Senator Rockefeller. He indicated to me that he and Senator Bond, the vice chair of that Intelligence Committee, are moving forward this week to have a markup on the Intelligence bill. It will be bipartisan. Senator Leahy has announced he would move very quickly with the Judiciary Committee, which has joint jurisdiction of that.

Hopefully, we can have that bill to us within the next couple of weeks. We should get that done so it is not a last-minute deal like it was right before we broke for one of our breaks. I think it was before the August recess when we were pushed so hard on that matter. So I think things are moving along well. The Intelligence Committee is working extremely well. I am very satisfied with the work they have accomplished.


The House-passed press shield law, H.R.2102 - Free Flow of Information Act of 2007, is on the Senate's legislative calendar. See also House Report 110-370 and S.1267. The Senate Bill has an express provision that applies "press shield" rights to public communications providers (telephone companies and internet service providers). The Senate language essentially guts the possibility of civil suits against public communication providers for violation of privacy. Public communication providers would become the equivalent of "the press" when it comes to compelled testimony.


Senator Grassley said, "Senior GSA management needs to realize that what may be profitable or strategically important for the GSA may not always be in the best interests of the taxpayers." An interesting speech to read (cure for insomnia if listened to), and the senator should know that management will ALWAYS act in the organization's best interest, even when that is at the expense of the customer.


A somewhat interesting list of House-passed bills that would have been quietly passed but for objection by some Senator (what happened to the obligation to report objections in writing?): National Forests - Natural Resource Projects.


12:58: Senator Reid urges Labor/HHS Appropriations as "to be done" this week, with "The Farm Bill" next up as the hot priority -- even though "The Farm Bill" hasn't made it out of mark-up as of yet.

18:58: Senator Reid modifies his urging and pushes the git 'r done deadline to Tuesday noon. Smiles all around. First degree amendments due by 1:00 p.m. tomorrow.


Second Circuit withdraws its opinion in Higazy v. Millenium Hotel and Resorts. Intriguing.
Oct 19: Blogger Posts Opinion Despite Security Concerns

October 19

Select Committee on Intelligence: Committee met in closed session and ordered favorably reported an original bill entitled, "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007"

Press Release of Intelligence Committee - October 18, 2007

FISA Amendments Act of 2007 (1.9 Mb PDF file)

Some information in the NYT, Panel Approves Eavesdropping Compromise

" ... the measure [was] approved in a 13-to-2 vote." The two Nay votes were cast by Senators Wyden and Feingold. Other statements reported in the NYT story may or may not reflect reality, since Senators and media are known to lie, and we don't have the text of any part of the "eavesdropping compromise," let alone the entire thing.

The three closing paragraphs in the NYT article point up some interesting (if true) details:

  • Senator Feingold's impression of the top-secret documents, disclosed by the administration to selected members of the Senate (ostensibly to disclose the scope and rationale of the warrantless surveillance), is that they show clear illegality, rather than basis for granting retroactive immunity.
  • Senator Dodd is opposed to the bill, and characterizes the retroactive immunity as "amnesty"
  • Senator Rockefeller refused to grant civil or criminal immunity to government actors. That is, the retroactive immunity ("amnesty" is a good word for it) is extended only to the communications carriers.

Senate panel OKs spying legislation - Los Angeles Times

Rockefeller and Bond defended the immunity provision, saying that the companies had been approached in the aftermath of the Sept. 11 attacks and were led to believe that the government's requests for access to their networks were lawful.

"Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security," Rockefeller said. "The onus is on the administration, not the companies, to ensure that the request is on strong legal footing, and if it is not, it is the administration that should be held accountable."

This doesn't hold water, in light of Qwest's quick recognition that the government-requested surveillance was illegal. AT&T and Verizon legal people aren't rubes or naive when it comes to the legal limits of warrantless surveillance. I'm not making a value judgement that what they did was "morally wrong," because sometimes breaking the law is morally right. Like crossing the border to come to a better country, not paying taxes, and lying to investigators or a court to save your ass.

It's no wonder people lack respect for the law, and for Congress. The little guy is squeezed, the big guy gets off. Accountability is for peons.

Senate panel OKs wiretap bill, telecom immunity - Reuters

"It ensures that the unchecked wiretapping policies of the administration are a thing of the past," Rockefeller told reporters.

Now that's a hoot! The new law has the same power of assuring restraint that FISA 1978 had, ZERO. Congress is going to grant blanket amnesty for breaking that law, if the law was violated; and it will grant amnesty for breaking THIS law, when push comes to shove.

Yes, "when," not "if." The next barrier is wholly domestic communications, because, as we all know, there are bad guys roaming among us (some of them are citizens - you know who you are), and warrants impede swift, preemptive and decisive action against evil-thinker/talkers.

US Rep Sees Telecom Cos Getting Wiretap Immunity - CNN

The telephone companies argue that the program's legality wasn't theirs to determine. They say that the dispute is between Congress and the White House and that they shouldn't get caught in the crossfire. ...

Verizon and AT&T told lawmakers earlier this week that, while they could neither confirm nor deny participation in a wiretapping program, they are reimbursed for those types of government requests.

Paid to break the law. A great gig. Unfortunately, I don't see a Presidential Order in my future, telling me not to pay taxes, etc. Dang. So much for legislative amnesty for my lawbreaking.

Senate Intel Bill Grants Immunity - AP (by Pamela Hess)

The draft bill would direct civil courts to dismiss lawsuits against telecommunications companies if the attorney general certifies that the company rendered assistance between Sept. 11, 2001 and Jan. 17, 2007, in response to a written request authorized by the president, to help detect or prevent an attack on the United States.

Suits also would be dismissed if the attorney general certifies that a company named in the case provided no assistance to the government. The public record would not reflect which certification was given to the court, according to Democratic and Republican aides who spoke on condition of anonymity because the committee had not yet acted.

Making the distinction seems a waste. Just certify "Such and so company either rendered assistance pursuant to an order authorized by the president, or it did not." Sheesh. It's pure amnesty, why bother making the distinction to the court? Just dismiss telecoms from all civil liability for privacy violations.

And setting that January 17, 2007 date sets up an argument that there was a transition from "illegal" to "legal," coinciding with a transition from "program not under FISC" to "program under FISC." A better legislative solution is to altogether remove the date references. A telecom who acts pursuant to a written request (demand) authorized by the president was and is acting legally, period. Just write that in the statute, without any date delimiters.

If "Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security" is a valid justification for amnesty from suit, looking retrospectively, it is likewise a valid justification looking forward.

As for timing on passage, it appears there will be an extended "debate" (scare quotes, because Congressional debate is generally demagogic, not substantive) by both the House and the Senate.

Senate Panel Approves New Surveillance Bill - WaPo

... aides to Senate Democratic leaders said they expect to be able to pass a bill by late November.

In the House, meanwhile, Democratic leaders said they are considering bringing their own version of the bill to a vote, without the immunity provision, as early as next week. The leaders pulled back from such a vote on Wednesday, because they could not prevail over GOP opponents on a parliamentary maneuver.


Senator Durbin's DREAM Act is back (I thought it might even appear in the Labor/HHS Appropriations bill), this time as a stand-alone bill, S.2205, read for the first time and put on the calendar as such, on October 18.


No roll call votes (and no Committee meetings, and no Committee hearings) today. The "pending amendments" stack for the Labor/HHS Appropriations bill contains 11 amendments.


AT&T and Verizon Executives Give Senator Rockefeller $43,000

Fate Unclear For Senate Bill Giving Telecoms Wiretap Immunity - Dow Jones

Sen. Joseph Biden, D-Del., also a Democratic presidential candidate, has come out in opposition to the [amnesty] provision too. ...

Obama's office, as well as the campaign and Senate offices for Sen. Hillary Clinton, D-N.Y., have refused to comment.


There are many interesting individual orders in Homeland Security Presidential Directive - HSPD-21.

  • (21) The Secretary of Health and Human Services shall establish an operational national epidemiologic surveillance system for human health
  • (34) The Secretary of Homeland Security, in coordination with the Secretary of Health and Human Services, shall prepare an unclassified briefing for non-health professionals that clearly outlines the scope of the risks to public health posed by relevant threats and catastrophic health events
  • (42) The Pandemic and All-Hazards Preparedness Act (PAHPA) (Public Law 109-417) requires that the Secretary of Health and Human Services submit in 2009, and quadrennially afterward, a National Health Security Strategy (NHSS) to the Congress.


Press Briefing by Dana Perino - Oct 16

President Bush has a constitutional responsibility to nominate excellent judges to serve in America's courthouses. It's one he takes very seriously. The Senate also has an important responsibility to act on the President's nominations. ...

On August 2nd, the Senate Judiciary Committee voted Judge Leslie Southwick, a nominee for the Court of Appeals for the 5th Circuit, out of committee with a favorable bipartisan vote. And as the full Senate prepares to vote on his nomination, we encourage all members of the Senate to swiftly confirm Judge Southwick. He is a highly respected attorney with an extensive record of public service as a judge and military officer.

And what of Keisler, Kethledge and Murphy? No pressure from President Bush for the Committee to act on those nominations, all of which were submitted to the Senate before Southwick's.


14:00: This won't make it into the record, but I saw it with my own eyes. The Senate ratified a treaty, with the voting protocol being tally by standing. Senator Reid is the only Senator in the chamber, besides Senator Klobuchar, who occupies the chair. All those in favor, rise. [Senator Reid is standing] All those opposed, rise [Senator Reid is still standing]. Okay, let's do that over again, agree the two Senators. [Senator Reid sits] All those in favor, rise. [Senator Reid stands] All those opposed, rise [Senator Reid sits] The treaty is ratified. [Senator Reid stands] Then the following brief exchange ...

Reid: How do you think I feel, being 2/3rds of the Senate?
Klobuchar: You look like you're almost a whole.

I swear, I am not making this up.

14:02: Senate stands adjourned until 2:00 p.m. Monday.

October 20

A not-unusual "parliamentary" maneuver here, where the competing texts that will go to conference on a bill are contained in completely separate bills.

Mr. REID. Madam President, I ask unanimous consent that the Senate proceed to the consideration of Calendar No. 340, H.R. 3221, the House Energy bill; that all after the enacting clause be stricken and the text of the Senate engrossed amendment to H.R. 6 be inserted in lieu thereof; that the bill be read a third time, passed, and the motion to reconsider be laid upon the table; that the Senate insist on its amendment, request a conference with the House, and the Chair be authorized to appoint conferees and that the title amendment at the desk be agreed to. ...

Mr. CORNYN. ... we are trying to clear any objections on our side ... I must respectfully object.

H.R.6, as passed by the House, ran 16 pages. The Senate gutted that, and substituted 464 pages of legislation. The House later passed H.R.3221, which weighs in at 1004 pages. The measures to be combined and negotiated are the 464 pages of Senate prose and the 1004 pages of House prose. There are plenty of nasty stinkers in either version of the Energy Bill. It'll be interesting to see if Senator Stevens can again sneak an ANWR provision into the conference report.


U.S. Supreme Court Justice Antonin Scalia speaks out at VU campus - a place I am very familiar with, wish I could have been there.


Claim of Pressure for Closed Guantánamo Trials - New York Times

Colonel Davis, a career Air Force lawyer, said one of his priorities as chief prosecutor had been to get as much evidence as possible declassified so people around the world could assess the strength of cases against terrorism suspects. But he said two officials told him in September that he was wasting time declassifying evidence and that it was more important to move quickly by filing charges against detainees.

No matter how perfect the trial is, Colonel Davis said, if its behind closed doors, its going to be viewed as a sham.

If there is a sham trial at GTMO, and the world isn't aware of it, how can it be viewed as a sham? Out of sight, out of mind.

There is a puzzling aspect hinted by the news report. How do declassification and concerns about trial contents play into hesitation in charging? Classified evidence is, in the context of trial by Military Commission, generally admissible. Therefore development of charges doesn't depend on classified evidence being declassified.

Watch for some surprising plea bargains and/or releases, of "big name" detainees, as far as legal process has gone. I expect the Hamdan and Boumediene cases to be disposed of via plea bargain and release. The alternative is to have the law of detention reviewed by SCOTUS, with a risk of an decision adverse to the administration. Better to free the detainees than to have prior acts ruled "out of bounds" by SCOTUS, which might find those cases to embody detention with inadequate evidence or inadequate process.


H/T HowAppealing ...

Immunity push for telecom firms might not kill wiretap suits

For one thing, [attorney Lee Tien of the Electronic Frontier Foundation] said, plaintiffs' lawyers would argue that retroactive immunity in this case violates the constitutional separation of powers.

"When you've got pending lawsuits and suddenly pull the rug out from under them ... that's a major attack on the role of the judiciary," Tien said. ... In addition, he said, Congress has no power to grant immunity for constitutional violations.

October 21

On the Higazy case, a very good overview of the range of events in "A tale of two decisions" - by Steve Bergstein.


If true, and I have plenty of resasons to doubt Senator Reid's veracity, the hold up on getting to the Southwick nomination is due to waiting for the Republicans to specifically request the nomination be brought up for a vote.

Mr. REID. I have indicated, Madam President, we have a lot of work to do. The chairman of the Judiciary Committee and I have stated on a number of occasions that on controversial judicial nominations we are not going to move on those until the minority tells us that is what they want to do. One of those nominations is Judge Southwick. That matter was reported out of committee sometime ago, and both Senator Leahy and I have said that when the Republicans tell us they want to move to that nomination, we would do that. So sometime next week I am more than likely going to move to that matter. So I want everyone to know that, in fact, is the case.

Monday, October 01, 2007

An Appropriations Week - Oct 1, 2007

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

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

Last week, Senator Reid also mentioned:


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

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

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

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

Conclusion of Defense Authorization

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

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

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

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

UPDATE @ October 2

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

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


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

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

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

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

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


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

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


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


Closing business included passing the following:

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

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

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

UPDATE @ October 3

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

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


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

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

ConfirmThem: Southwick Vote Later This Week?

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

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

Passage of Intelligence Authorization

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

[Record of Passage including S.Amdt.3160]

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

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


Iraq Kurds ink four new oil deals - AFP


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

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

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


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

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

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

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

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

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


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

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

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


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

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


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


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

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

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


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

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


Closing business by Senator Reid ...

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

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

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

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

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

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

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

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

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


This is a heavy hit on the administration.

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

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

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

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

Jack Balkin: Torture Memo 2.0

UPDATE @ October 4

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

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

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

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

UPDATE @ 10:13

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

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

UPDATE @ 12:32

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

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

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

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


White House Denies Torture Assertion - WaPo

Press Briefing by Dana Perino - Oct 4


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


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

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

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


The New York Times reports

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

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

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

The Senate then resumed legislative business.

Two measures to be placed on the calendar tomorrow:

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

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

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

UPDATE @ October 5

Competing SCHIP do-over proposals:

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

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

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

UPDATE @ October 6

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

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

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