Monday, December 03, 2007

December 2007

AP has put together a snapshot preview of the last three weeks of the 1st session of the 110th Congress. "Congress Returning for Daunting Agenda," by Andrew Tyler.

Items noted as "on the agenda":

  • Iraq supplemental - with or without pullout strings attached (President Bush will veto any appropriation with conditions attached) [H.R.2764 - Consolidated Appropriations Act (amended House version) passed Senate on Dec 18, includes supplemental]
  • Alternative Minimum Tax revisions - House Democrats seek tax increases elsewhere to "make up" the lost revenue. Republicans threw away a chance to fix AMT in the 109th Congress, by stubbornly insisting on obtaining a trifecta of Minimum Wage, Estate Tax, and AMT extenders. The 109th Congress passed H.R.6111, which tinkered with only one aspect the AMT. Look for a repeat, i.e. "tinkering." [One year AMT extender with no offsetting tax increase, H.R.3996, passed the Senate on Dec 6, but the message on Senate action was held in the Senate until Dec 17]
  • Appropriations bills - good chance of yet another Continuing Resolution, which is a better approach than new appropriations bills, as it holds the growth of government. [H.R.2764 - Consolidated Appropriations Act (amended House version) passed Senate on Dec 18]
  • FISA amendments - according to Mr. Tyler, the Senate may vote on its version of FISA amendments this week - S.2248. The House proposed bill, H.R.3773, is radically different, e.g., it lacks the lawsuit immunity provided by the Senate bill and it doesn't redefine "electronic surveillance" to exclude electronic surveillance of international calls. Both of those provisions are "must haves" of the administration. I don't see the FISA issue being sent to conference, even though the House passed H.R.3773. [Senator Dodd successfully filibustered this into January, refusing consent to move promptly to take up S.2248 on Dec. 17, after cloture was invoked on the motion to proceed]
  • Energy bill conference report (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.) [Senate passed on Dec 13, House passed on Dec 18]
  • "The Farm Bill" - H.R.2419 [Senate passed on Dec 14, bill sent to conference]
  • A third fresh start on State Children's Health Insurance Program. The first bill, H.R.976, was vetoed. The second version, H.R.3963, was "Cleared for the White House" on November 1st, but has not (and won't be) "Presented to the President." [The bill was sent to President Bush, who vetoed it on Dec 12. Congress won't act on the veto until January]
  • Legislation on sub-prime mortgage lending? (not in this AP report, but this topic is taking a substantial amount of reporting bandwidth the past few days)


On Wednesday, SCOTUS will hear oral argument on the Boumediene and Al Odah cases. SCOTUSwiki on Boumediene and Al Odah contains all the links for serious investigation.


More than you want to know about Senator Craig, at "More gay men describe sexual encounters with U.S. Sen. Craig."


Another article on Congressional plans for the end of the first session, "White House-Hill face-off looms." It cites Democratic leadership (Pelosi and Reid) as planning to send an omnibus appropriations package to the president, and that this will be vetoed. Just another step on the way to a continuing resolution.

Today, from the White House: President Bush Discusses Congress's Legislative Priorities.

1. Iraq emergency supplemental, with no strings attached
2. FISA revisions - especially lawsuit immunity for communication providers
3. AMT push-out, to prevent a number of taxpayers from being subject to it
4. The remaining appropriations bills, without too many earmarks

Also from the White House, but from November 29: Press Briefing by Dana Perino

They only have six legislative days left in the session. Their focus should be on funding the troops, making sure the intelligence gap remains firmly closed, and by passing a budget ... The Democrats have failed to pass not only the legislation for the troops, but any legislation on energy, on veterans issues that we have provided to them, on the housing mortgage industry, on entitlements. They haven't moved forward on AMT reform -- it's about to hit 20 million people.


Andrew McCarthy on FISA: "FISA Reform Debacle in the Making?"

Did you know:

  • a call from, say, a terrorist in Pakistan to a terrorist in Iraq must now zoom through U.S. wires
  • Today's challenge is to discover the unknown Mohamed Atta in our midst, something that can't be done unless surveillance begins whenever it is reasonable to suspect a foreign operative. [Why limit surveillance to "foreign" operatives? See Aldrich Ames. Citizens are likely to be operatives, and are not in fact, above suspicion.]
  • Unaccountable judges have been less concerned about national security than due process for terrorist suspects. [Everyone is a potential "Mohamed Atta" terrorist suspect.]

It's not the first time I've disagreed with Andrew McCarthy, and I find this piece to be particularly one-sided and error ridden. At the same time, I have no quarrel at all with disposing of FISA, lock-stock and barrel. Let the government take it's chances on court rulings regarding the "reasonableness" of surveillance, on a case-by-case basis.


A couple bills read the first time; H.R.3703 and H.R.3997. Senator Reid then responds to President Bush's speech this morning. In general, he touts what he sees as the accomplishments of the Congress. He uses a Ron Paul speech to justify continued locking of horns on continued military investment in Iraq.

He listed seven major legislative actions to occur before the end of the session. Senator Reid's list tracks the list at the top of this post.

December 4

Yesterday, the House version of FISA revisions, H.R.3773, was put on the legislative calendar; and Senator Specter's proposed substitution of the United States for communications carriers in civil actions previously authorized by law (S.2402) was referred to the Senate Judiciary Committee. Says Senator Specter, "nothing in the bill is designed to increase or diminish the ability of the Government to assert the States Secret privilege." Quite the tap dance going on, as the government tries to hide its snooping policy that the fourth amendment is inapplicable to electronic communications, so long as the government says it's seeking foreign intelligence information.


Peru Free Trade Agreement "day" - H.R.3688.

Vote on passage is agreed to be started at 2:15 p.m.

H.R.3688 - To implement the United States-Peru Trade Promotion Agreement, was PASSED on a 77-18 vote.


Senator Reid says the reason the Senate is not working on the AMT is Republican obstructionism. More particularly, the Senate Republicans won't agree to take up the House version, which raises taxes elsewhere. So, he files a cloture motion on a motion to proceed to the House version, H.R.3996, expressly rejecting GOP versions of the bill such as elimination of the AMT.

Same sort of speech that Senator Frist made more than several times last year, blaming the minority party for obstructionism, while not negotiating compromise solutions in good faith.

Senator McConnell wasn't present at the instant, and when he spoke, it was to object to taking up the House bill. He propounds a UC agreement to take up a range of proposals, each with 60 vote hurdles. Senator Reid being absent, Senator Baucus objects, but notes that Senator McConnell's proposal is intriguing, and may represent a good starting point to negotiate a process for taking up AMT.

The gist of the proposals is to separate so-called "extenders" from the income threshold that causes a taxpayer to enter the AMT-regime. With regard to the "extenders" (deductions for various items cherry-picked by Congress), Senator Baucus suggests that taxes will be increased elsewhere, on other taxpayers, to make up the difference. But with regard to reindexing the threshold for invoking AMT, he suggests that there will not be offsetting tax increases.

18:29: The Senate stands adjourned until noon tomorrow.

December 5

AMT day. The Senate has agreed to continue debate on the motion to proceed to H.R.3996 - Temporary Tax Relief Act of 2007. This is prelude to the cloture vote (on that motion to proceed) scheduled for tomorrow morning. House Report 110-431 is a very "dry" read, but not as dry as the statutory text itself. Highly recommended reading, in order to see what exactly the Republicans are objecting to. In particular, look past the general "tax increase" rhetoric, and into precisely who would be affected by the proposed "tax increase" changes in IRS statute. Not so much as a matter of "class warfare," but to see how one can shift income from "regular" to "capital gains," and that certain professions have routine access to accomplish this sort of shift. There is no move to merge capital gains with regular income, or to increase the capital gains rate -- there would be a move to recast certain types of capital gain as regular income.

The GOP-offered UC agreement was as follows:

I ask unanimous consent at a time to be determined by the majority leader, after consultation with the Republican leader, the Senate proceed to consideration of H.R. 3996, the House-passed AMT bill, and it be considered under the following limitations:

  • There be 1 hour of debate on the bill, equally divided between the two leaders or their designees, followed by a vote on a motion to invoke cloture on the bill; provided further,
  • that if cloture is not invoked, then the only amendments in order to the bill be the following, and be offered in the following order:
    • A substitute amendment to be offered by Senator McConnell or his designee, which is to be an unoffset AMT extension and an unoffset extenders package;
    • a Baucus or designee first-degree amendment to the McConnell substitute which is to be a set of offsets for the extender package;
    • a Sessions amendment related to AMT and exemptions;
    • an Ensign amendment which is an AMT repeal and extends other expiring provisions;
    • a DeMint amendment which relates to AMT and flat tax;
  • provided further, that there be an additional 2 hours for debate on the bill, equally divided between the two leaders or their designees;
  • that there be a time limitation of 2 hours for debate on each amendment equally divided in the usual form, provided that each amendment would require 60 votes in the affirmative for adoption and that each amendment that does not require 60 votes then be withdrawn; I further ask that,
  • notwithstanding the adoption of any substitute amendment, the other amendments be in order, and finally
  • that following the consideration of the above amendments, 60 votes be required for passage of the bill as amended, if amended.

Senator Baucus's conclusion was "But we are unfortunately in a position where we are not yet free to pass legislation that we know at some point we are going to end up with; that is, AMT not being paid for and all the extenders paid for." Where "paid for" is shorthand for tax code modifications that eliminate favorable deductions or income treatment in some areas, in exchange for extending deductions on things like "when teacher pays for students' school supplies," and other items not commonly applied, but important to certain constituencies.


Speaking on the occasion of National Bible Week (soon to be balanced with "National Koran Week?")

Mr. ENSIGN. Mr. President, I rise to speak on behalf of the National Bible Association and the most influential force ever known to mankind, the Holy Bible. ...

As we now find ourselves in the midst of the Christmas season, National Bible Week should serve as an important reminder to always turn to the Bible, recognize its wisdom and Divinely inspired words, and reflect on its meaning in our own lives, especially in how we interact with and treat our neighbors.

Beyond serving as a personal moral compass on how to become a better person and neighbor, the Bible reassures us of God's infinite love for His creation. I encourage you to pick up and read the Bible and become awed by the history, lessons, and adventures found within its pages. As we celebrate National Bible Week, let us share the positive message of the Holy Bible with our families, friends, and neighbors.

I notice an absence of mention of the gospel, which, to a Christian, is the point of the Bible.


Senator Casey's introduced his proposal for legislation to reduce the rate of abortions (Pregnant Women Support Act - S. 2407). It's a financial package, referred to the Finance Committee.

  • assist pregnant and parenting teens to finish high school: counseling, parenting support classes, and childcare assistance
  • counseling and shelter to pregnant women in abusive relationships
  • free sonogram examinations by providing grants for the purchase of ultrasound equipment
  • eliminating pregnancy as a preexisting condition in the individual health care market
  • establish a nurse home visitation program for pregnant and first-time mothers as an eligible benefit under Medicaid and the State Children's Health Insurance Program
  • increasing the income eligibility levels for food stamps
  • increase funding for the childcare and development block grant program
  • make the adoption tax credit permanent


The Military Commissions Act will be argued before SCOTUS this morning. Howard Bashman (HowAppealing) has fresh collections of article links at "Detainees challenge civil, military justice" and "Gitmo returns to high court."

Lyle Denniston of SCOTUSblog is viewing the oral argument, and will post his observations and analysis shortly after the conclusion of the argument, with early posts expected around 11:15 if the oral argument ends on schedule, at 11:00.

And for a hook to the Senate, Senator Specter's amicus brief on the merits of the case (375 kB pdf file). He argues that the Detainee Treatment Act includes a substitute for habeas that is not "adequate and effective," but instead fails to provide fundamental due process. In short, he argues that Congress passed an unconstitutional law, and asks the Supreme Court to strike down part of the Military Commissions Act.

As of 11:30 a.m., no audio stream from the Supreme Court, and only a sketchy report of the argument from AP.

"Show me one case" down through the centuries where circumstances similar to those at Guantanamo Bay entitled an alien to challenge his detention in civilian courts, said Scalia.

Roberts challenged Waxman's argument that the duration of detention is important.

Justice Anthony Kennedy, considered the pivotal fifth vote in the case, raised the possibility of returning the issue to the U.S. Court of Appeals for the District of Columbia Circuit, where the detainees' status as enemy combatants is undergoing a highly restrictive form of review.

I'd sure like to hear the answer to Scalia's question, as well as one case through the centuries where one country grabbed another country's citizens, but not from a battlefield, and held them for years without charging or trying them.


The Senate Judiciary Committee has a Resolutions of Contempt vote in play for tomorrow's meeting, aimed at Harriet Miers and Josh Bolton.


C-SPAN3 started streaming the oral argument at about 11:43. The justices jumped in with questions almost immediately. CJ Robert's line of inquiry about the duration of detention came in the fist 5 minutes.


Pardon my "half an ear," as I'm mostly focused on the Boumediene argument, and added opening to the Senate just in case Senator Reid would make some monumental announcement. He didn't.

Senator Reid noted that Senator Warner has joined with the Democrats in a Senate Committee, I think on an energy bill, because the issue is "global warming." He also indicates that the Democrats are ready to negotiate on "the farm bill," with regard to how many amendments will be offered and debated by each party. He concluded, around 12:18, noting that he'd hate to work on Christmas week. Same old "overtime" threat.


Replay of Boumediene oral argument is concluded. The end of the rebuttal is powerful, as Mr. Waxman describes certain evidence that would be excluded, as a matter of MCA/DTA law, from a CSRT and from a court that is considering the propriety of detaining a person for "associating with a known al Queda." The government described the known al Queda as deceased, having blown himself up in a suicide attack, that's how we know he's al Queda. Evidence to be excluded? That person is, in fact, alive, and living a fairly normal life in Dresden, Germany.

So, does the law provide fundamental due process? Says the government, you betcha, in fact, it gives the enemy combatant detainee more rights than ever before.

Courtesy of, an MP3 audio of the Boumediene oral argument. Oral argument in Boumediene v. Bush (40 Mb .mp3).

Transcript of oral argument: Boumediene v. Bush (170 kb .pdf)

Transcript of oral argument: Boumediene v. Bush (Plaintext link - for the pdf averse)

Lyle Denniston's paraphrase of the argument (very good)


David Freddoso at NRO notes "Specter Slams Reid," where Senator Specter noted (today) that the following by Senator Reid is against Senate Rule XIX.

Mr. REID. ... Everyone within the sound of my voice should understand, if that comes to be, it can go to 16th and Pennsylvania Avenue because that is what President Bush--he is the man who is pulling the strings on the 49 puppets he has here in the Senate.

17:02: Senator Reid filed a cloture motion on the Harkin substitute amendment (#3500) to "the farm bill." The last time this vote was taken, November 16, cloture was rejected on a 55-42 vote.

He says that there will be a cloture vote on the motion to proceed to the Energy Bill on Saturday, if need be, as Representative Pelosi indicates that bill will emerge from conference tomorrow. A good write up in the Houston Chronicle, "Energy bill will see tax clash," and the Detroit Free Press, "House to vote on landmark energy bill." The Energy Bill will include some revenue enhancements for the government, but those measures will provoke a veto by President Bush.

Then more of the same old "you're the obstructionist" tag between various speakers. Senator Durbin suggests using the Senate chamber to set up a flea market. Heheh. It's already a circus.

17:59: Senator Menendez performed closing duties, and announced the Senate will resume business with one hour of debate starting at 10:30 a.m. tomorrow, with the cloture vote on the motion to proceed to the House AMT bill at 11:30 a.m..

Senator Thune has 15 minutes to talk before the Senate is closed. He advocates for taking up "the farm bill" under an open amendment and debate procedure.

On the Specter v. Reid show, "Arlen Specter: Is Reid 'up to the job'?" by S. A. Miller.

Sen. Arlen Specter today challenged Senate Majority Leader Harry Reid's ability to serve as leader, saying the Nevada Democrat sabotaged progress on long-stalled spending and taxes bills by calling Republican lawmakers "puppets" for President Bush.

The last weeks of the session are shaping up as "testy." There are plenty of substantive issues to fuel that fire.

December 6

AMT Morning, as the Senate will open with one hour of debate before voting on a cloture motion on the motion to proceed to H.R.3996 - Temporary Tax Relief Act of 2007.


At the business end of the GTMO debate, hearings are underway at GTMO to determine whether the Military Commissions established by the MCA/DTA have jurisdiction to try Hamdan. See Ben Fox's article, "1st Witnesses to Testify at Guantanamo." The Combat Status Review Tribunals did not classify Hamdan as an unlawful enemy combatant (they pigeonholed him as an enemy combatant).

I typically don't read Dahlia Lithwick, but a link at HowAppealing sent me to "It Was the Best of Habeas, It Was the Worst of Habeas." Pretty good read on a tough subject. I also clicked through to "Don't Know Much About History," which purports to probe the contention that GTMO detainees have adequate procedural protection of their substantive claims.

David B. Rivkin Jr. and Lee A. Casey present the opposing view, in "Gitmo Goes to Court. They have a point, that the Court has no business in second-guessing certain executive detentions, even if the detention is manifestly in error, unfair, and wrong; and even if the alternative "due process" is a sham.

Too bad the Pakistani military deported the Code Pink's -- they could have stuffed them in life detention with nary a public explanation.

I got to wondering how the Barbary Pirates were handled (i.e., if any were ever before a US Court), and hit Wikipedia on the Barbary Pirates. Wow, those guys sacked entire cities and enslaved the (multiple thousands of) survivors. They were handled with diplomacy, tribute, and military force up to and including regime change.

In 1786, Thomas Jefferson, then the ambassador to France, and John Adams, then the ambassador to Britain, met in London with Sidi Haji Abdul Rahman Adja, the ambassador to Britain from Tripoli. The Americans asked Adja why his government was hostile to American ships, even though there had been no provocation. The ambassador's response was reported to the Continental Congress:
That it was founded on the Laws of their Prophet, that it was written in their Qur'an, that all nations who should not have acknowledged their authority were sinners, that it was their right and duty to make war upon them wherever they could be found, and to make slaves of all they could take as Prisoners, and that every Musselman [Muslim] who should be slain in Battle was sure to go to Paradise.
Aside from the recent batch of pirates (now elevated to the label of "terrorist") not having a formal ambassador and not being concentrated in an identifiable country, that scenario sure is familiar.


Senator McConnell on FISA ...

On FISA, I think we have a way forward. The majority leader and I have talked about it. I think we both have the view that the underlying bill will probably be the intelligence measure. I think we should be able to construct some kind of consent agreement in that particular instance where I don't think there is much of a demand for amendments--some amendments but not a whole lot--that will allow us to go forward.


Senator Coburn on appropriations bills ...

I sent a letter to all of my colleagues today outlining and reinforcing four statements I made at the first of this year. I will object to any bill coming forward by unanimous consent at the end of the session unless it meets the requirements I laid out. That means no new authorizations unless you deauthorize something else. We are not going to grow the Government any more when we cannot pay for the Government we have. No. 2, it has to be constitutional. It has to be a true duty of the Federal Government, not an obligation of the State governments ...


Senator Reid on the energy bill ...

[The House] is going to complete either today or tomorrow an energy bill. That being the case, that will come here as a message from the House and we will have a cloture vote on that. The way things now are, if it gets here tomorrow [Thursday], we will file a cloture motion on that and we will have a vote on that Saturday. So everyone should know that unless there is an agreement to change that, we will have a vote on Saturday.

If a cloture vote on a motion to proceed to this energy bill (it may proceed under H.R.3221) is the only thing on the deck, there will be unanimous consent to waive the time periods prescribed by Rule XXII (where the standard cloture process is described), and conduct the cloture vote to proceed to the energy bill, immediately after Friday's cloture vote to limit debate on "the farm bill."

Representative Pearce on the energy bill ...

And what are we to say about the bill? We are having to speculate. We are told that it's coming up this week, either today [Wednesday] or tomorrow. It's obvious that it's not coming up today. So one would say that it must come up tomorrow because we had that promise from the Speaker of the House. And yet we don't have the text of the bill that is dealing with our future as a Nation, our ability to make and create jobs, and we know nothing tonight so that we can not really talk in anything but speculative terms. But we feel fairly certain on those speculative terms because we have had leaks from behind those closed doors where this process is going on.

Pearce's entire speech puts the debate in good view.


Senator Reid opens with no news as to Senate schedule, and praise to the action of President Bush in engaging North Korea on a diplomatic footing. "I take this as a sign [opposite of 'shoot first, ask questions later']." He says a similar approach should be applied toward Iran.

He segues into sub-prime lending a passing of the FHA modernization bill -- which bill he says is being stalled by, yep, Republican obstructionism. He asserts that Secretary Paulson urges passage of S.2338 - FHA Modernization Act of 2007, and then propounds a unanimous consent request to take up the bill, the Dodd/Shelby amendment be agreed to, and the bill be passed as amended. Objection is made on behalf of Senator Coburn.

P.S. The text of the amendment isn't available on Thomas.

P.P.S. In the Washington Times, GOP wary of Bush's rate freeze," by Patrice Hill.

12:00: Cloture on a motion to proceed to H.R.3996 - Temporary Tax Relief Act of 2007, was REJECTED on a 46-48 vote.

Senator Reid voted "Nay" and them moved to reconsider.

He then offered a unanimous consent request to pass a one year AMT extension, without any offsetting tax increase. Senator Gregg objected. Senator Reid says he'll renew the same request later today. I can't think of reasons for objection, other than: one based on timing, whereby Senator Gregg knows the House won't agree to a one year AMT extension, without any tax offset and no other trades, and it would be more expedient to debate and pass something that has a chance of passing in the House; and one whereby the GOP thinks it can get more than a one-year extension of the current AMT threshold.

12:10: Senator Reid puts the Senate into morning business, noting an absence of clarity in the immediate schedule.


Above, I mistakenly stated that the Senate Judiciary Committee would vote on a resolution of contempt against Harriet Miers. Here is an excerpt from Senator Leahy's opening statement:

Today, we have on our agenda resolutions finding White House Chief of Staff Joshua Bolten and former Deputy Chief of Staff Karl Rove in contempt of Congress for refusing to comply with subpoenas issued in the U.S. Attorney investigation by this Committee.

An article yesterday, from "The Hill," "Senate Judiciary Democrats Push Contempt Motion," indicates a likely one week delay in voting the contempt resolutions out of Committee.


The Senate reached unanimous agreement to proceed to the AMT issue, in the form of Baucus amendment. I believe this is on the same bill proposed to be passed without a vote, this morning, where the only contents of the amended bill is a one year extension of AMT, i.e., "if you didn't pay AMT last year, you don't pay it this year."

Senator McConnell sought to have that modified to include the "tax deduction extenders, without offsetting tax increases," and Senator Baucus counted with including "tax deduction extenders, WITH offsetting tax increases." Neither of those was mutually agreeable, so tax extenders are not part of the current, brief debate.

The Senate will vote on the proposed bill, with that vote beginning at 6:15 p.m. 6:25 p.m.

18:24: Senator Reid indicates that the vote will be either delayed or extended, because at least two senators are stuck in traffic, and won't be able to cast their vote until around 7:00 p.m. In any event, he notes that this vote will be the final action of the day.

18:31: Read of initial votes has this passing by a fat margin, only Conrad and Feingold in the NAY column, and 30 or so others (plenty of Democrats, e.g., Kennedy) voting AYE.

19:25: H.R.3996 - Temporary Tax Relief Act of 2007, as amended by a Baucus amendment, was PASSED on a 88-5 vote.
NAY votes: Carper, Conrad, Dorgan, Feingold, and Whitehouse

Senator Reid says the House has indicated it will pass this AMT extender, standing alone.

Senator Reid seeks a UC agreement to take up the farm bill with 20 amendments on each side. No objection. So, no reason to conduct the farm bill cloture vote tomorrow. It is belayed until some future time, perhaps if voting on amendments bogs down.

Another agreement, this to ...

- move to concur in the House amendment to H.R.3221 - the energy bill
- file a cloture motion on the motion to concur
- 20 minutes of debate, with no amendments in order
- vote on the cloture motion on the motion to concur without amendment

... with the clear expectation that this cloture vote will fail. No reason to have a cloture vote on Saturday, and no votes on Monday. Senator Reid will use the weekend to negotiate proceeding on the Energy bill.

20:17: The Senate stands adjourned until 9:30 a.m. 9:00 a.m.

December 7

Energy bill day? Or "the farm bill" day? Early cloture vote, destined to fail, on passage of the House energy bill. Senator Reid extended the time for debate from 20 minutes, to 35 minutes.

9:03: Cloture motion filed on motion to concur in House amendments to energy bill
9:04: 35 minutes of debate begins

WH Policy as to House - will veto
WH Policy as to Senate - will veto

Senator Domenici describes how the energy bill was hijacked from conference (taken OUT of conference), by House Democrats, and this bill, now presented under H.R.6, was crafted well outside of the normal conference committee process.

9:46: Senator Reid says this is the only vote for today. The next votes will be on Tuesday. The Senate will work on "the farm bill" starting Monday afternoon, with the first votes occurring Tuesday. The customary long weekend is in sight!

9:47: The cloture vote begins, on a cloture motion filed 44 minutes ago.

10:20: Cloture on the motion to concur with House amendments to H.R.6 - Energy bill (many short titles under parallel H.R.3221), was REJECTED on a 53-42 vote.

Senator Domenici says that the Senate will continue to work on an energy bill, modifying what has come out of the House.


The amendments that "filled the tree" on "the farm bill" have been withdrawn. Heheheh.

So, today will be "farm bill day," but without any votes.


Senator Durbin launches "tapegate," whereby he requests the Attorney General to investigate whether a crime (destruction of evidence and/or obstruction of justice) was committed when the CIA withheld and destroyed videotape evidence of CIA-conducted interrogations.


Circuit Court Nominations Summary has been updated to reflect yesterday's nomination of William E. Smith to a seat on the 1st Circuit.

15:15: The Senate stands adjourned until 3:00 p.m. Monday.

December 11

Lots going on in the back rooms -- besides the CIA tapegate hearings. And, FWIW, tapegate is probably moving faster in the courts than in Congress.

"'No deal' on spending on Hill"

Capitol Hill Democrats' plan to pass long-stalled spending bills before the Christmas break by coupling it with emergency war funds unraveled yesterday as the White House and congressional Republicans held firm on budget limits. ... negotiations faltered on the $522 billion omnibus spending package ...


Scooter Libby drops his appeal (after having the deadline for filing his brief rescheduled from October to December). His attorney, Ted Wells explained, "success on the appeal would lead only to a retrial." I wonder if he is telegraphing that he was not going to appeal on the grounds that Fitzgerald's appointment was constitutionally defective, and therefore the ENTIRE independent investigation and grand jury empaneling should be a legal nullity.


Two FISA bills were introduced by Senator Reid, and read for the first time: S.2440 and S.2441 (link is to text of both proposed bills).

S.2440 appears to be the bill as passed out of the Judiciary Committee, having an amended "Title I," the snooping provisions, and NOT having a "Title II," amnesty for telecommunications companies from being held to account in court (where they might win) for violations of privacy laws in existence (I was going to say "in force," but it appears these laws have no force) as of 2001-2006.

S.2441 includes amnesty, but I don't think it's exactly the bill as passed out of the Intelligence Committee. All (four) of these are lengthy, and I'm not going to undertake a detail comparison.

For reference: S.2248 and H.R.3773


The GOP completed the introduction of its 20 amendments to "the farm bill" yesterday.

Today, 3 hours of debate equally divided and controlled for debate on Lugar-Lautenberg #3711, followed by a vote on that complex and multi-faceted amendment, sometime after the party policy luncheons.

10:10: Senator Reid indicated that the House may send an amended AMT bill back to the Senate for its concurrence. The two FISA bills were read the second time and placed on the calendar.

Not much in the way of schedule details, mostly acknowledgment of the fact that the schedule is cramped, and an ode to getting "the farm bill" done before Christmas. Oh, and that spending stuff too.


Senate Judiciary Committee Hearing, "The Legal Rights of Guantanamo Detainees," following in the wake of oral argument in the Boumediene case.

It's an interesting hearing, being broadcast on C-SPAN3. Mark Denbeaux asserting that the DoD has reported on the "30 detainees released from GTMO have returned to do battle against US forces." The DoD report reviewed the 30 given names. The "battle" that 3 of them did was produce a documentary. The 5 Uighurs in Albanian refugee camp are part of the 30. There is no record of presence at GTMO, for 2 of the named people.

WaPo: Lawyers Assert That Pentagon Overstates Ex-Detainee Threat (Dated Dec 11, 2007, recapitulates Mark Denbeaux's assertions)

Wikipedia: List of released Guantanamo prisoners who allegedly returned to battle

My point of view is that exaggeration and puffery does not help a serious cause, and that at this point, I think both sides are practicing exaggeration and puffery.

December 12

The FISA Court issued its opinion following briefing, where the ACLU had moved for access to redacted documents that describe the "refused" warrants in 2007, when the government brought the Terrorist Surveillance Program under the FISA umbrella. The FISA Court said "no dice, file a Freedom of Information Act case in a Federal District Court."

SCOTUS blog has more, including a link to the opinion, in "Secret court won't release spying orders."

In an August 18 piece, "FISA Court Order re: ACLU Motion to Unseal," I predicted the request would be denied, and that the grounds for denial would be in the nature of "your request is outside of our jurisdiction."

My prediction relative to the grounds for denial was wrong. The FISC held that it had jurisdiction, and that it had complete authority over its own records. It found an obligation to deny the motion as a matter of adhering to the secrecy scheme established by the Supreme Court acting in accordance with the FISA statute, and an absence of overriding right to review under either common law or constitutional principles.

Under FISA and the applicable Security Procedures, there is no role for this court to independently review, and potentially override, Executive Branch classification decisions.


Another "farm bill" day. A long winded UC agreement, with action starting at noon today:

  • 2 minutes equally divided and controlled for debate on Gregg Amendment No. 3671, followed by a vote on the amendment
  • 2 minutes equally divided and controlled for debate on Gregg Amendment No. 3672, followed by a vote on the amendment
  • time limitations of debate on additional amendments:
    • Sanders Amendment No. 3639 (added on 12/12)
    • Alexander Amendment Nos. 3551 and 3553, 30 minutes each
    • Cornyn Amendment No. 3687, 30 minutes
    • Gregg Amendment No. 3673, 2 hours
    • Dorgan/Grassley Modified Amendment No. 3695, 2 hours
    • Sessions Amendment No. 3596, 40 minutes
    • Klobuchar Amendment No. 3810, 60 minutes
    • Coburn Amendments Nos. 3807, 3530, and 3632, 90 minutes
  • Voting on Thursday, starting at 9:15 a.m on Dorgan/Grassley Modified Amendment No. 3695
  • Dorgan/Grassley #3695, Gregg #3673, and Klobuchar #3810 each require 60 votes in the affirmative to be agreed to
  • 2 minutes, equally divided and controlled, for debate prior to each vote, and that each vote following the first be 10 minutes in duration in any "stacked" sequence ordered.
  • the cloture vote on Harkin #3500 (substitute for the text of the bill), occur at a time to be determined by the Majority Leader, after consultation with the Republican Leader


More action on the Energy bill too. This being procedurally different from voting to concur in the House message. Unanimous consent agreement provides, "any cloture motions filed on Wednesday, December 12, 2007, with respect to H.R. 6, [Energy bill] be considered to have been filed on Tuesday, December 11, 2007." That sets up the possibility a cloture vote on Thursday, and no votes on Friday.

09:30: Senator Reid sets up the morning hours as a time to request unanimous consent to pass some number (he says "over a hundred") of bills that are being held up by one or more Republicans.

He says the Republicans are perpetrating "obstruction on steroids."

Senators Cornyn stands in to object to each bill as consent is asked, and acts as though consent to pass other bills in the Democrats' list is conditioned on including the Iraq Emergency Supplemental (S.2340). The Democrats won't agree to a "no strings attached" emergency supplemental without debate, so the morning hours will be used to provoke Senate floor objection to passage of pending legislation.

Each bill objected to will have a back-story of its own.


SCHIP No. 2 (HR 3963) was sent to the president after all (on November 30), and vetoed today (link is to WH Comments). That's one more item to scratch off the "to do" list for the first session of the 110th Congress. It's been reported that the House will conduct a veto-override vote on January 23rd. (AP: "Bush Vetoes Kids Health Insurance Bill")

December 13

Press Briefing by Dana Perino - Dec 12

Q Scooter Libby did not receive a pardon this time. Is he not going to receive a pardon?

MS. PERINO: I never -- as I said the other day, I do not comment or speculate on who will or who will not get pardons from this President.

Q Can you assure us that once the Wilsons' civil suit is resolved, the President will speak out about the Libby affair?

MS. PERINO: I would assume that once everything -- once that is settled, yes, I would hope that we could be able to comment further.

Wilson's civil suit claiming damage from being "exposed," was dismissed in July (link to PDF of Judge Bate's July 19, 2007 opinion and order). An appeal from the dismissal is pending. Long story short, don't expect any substantive comments from the administration, regardless of the legal posture of whatever case.

More Libby commentary from Dana Perino on December 10 and on December 11.


Good comments on Congressional inclination toward mortgage lending.
Volokh (Jim Lindgren): Congress Is Making It Harder to Obtain or Refinance a Mortgage


The Senate Judiciary Committee December 13 meeting agenda includes the "I. Resolutions of Contempt," held over from last week.

The White House has responded with "Pending Nominations Delayed by Partisan Politics," which comes off (to me) as an exceptionally defensive reaction and diversion. Not that the Judiciary Committee has been prompt with confirmation hearings, etc., but THAT issue is, by now, several YEARS old. There are 12 pending Circuit Court nominees, with 11 of them still in committee. Tinder's nomination has been reported out.


Backroom action on the Energy bill, per AP. "Close Senate Vote Expected on Energy."

Some of the details were still being worked out late Wednesday as Majority Leader Harry Reid of Nevada mapped out strategy to overcome a certain GOP filibuster against the bill's $21.8 billion tax package, including repeal of $13.5 billion in tax breaks enjoyed by the five largest oil companies. ...

Senate Democrats dropped a House-passed provision that would have required investor-owned utilities nationwide to generate 15 percent of their electricity from solar, wind and other renewable sources.

Procedurally, the pending business of the Senate is a "Motion to concur in the amendment of the House to the amendment of the Senate to the text of H.R. 6 ... with an amendment."


Rough schedule of debate and action for the morning of December 13:

  • 8:30 a.m. - resume consideration of H.R. 2419, "the farm bill"
  • 9:15 a.m. - vote in relation to Dorgan/Grassley Amdt. No. 3695 (60 votes required to pass, per UC agreement)
Then an energy bill interruption, "upon disposition of Amdt. No. 3695, there be two minutes of debate, equally divided, prior to a vote on the motion to invoke cloture on the motion to concur with an amendment in the House amendment to the Senate amendment to [H.R.6 - the energy bill]."

Then, regardless of the energy bill cloture vote outcome, back to "the farm bill":

  • Cornyn Amdt. No. 3687 debated for 30 minutes
  • Klobuchar Amdt. No. 3810 debated for 53 minutes, with 23 minutes for the proponent and 30 minutes for the opposition
  • Coburn Amdt. Nos. 3807 and 3530 for 70 minutes
  • Brown Amdt. No. 3819 for 60 minutes
  • Tester Amdt. No. 3666 for 60 minutes
  • Stacked votes, with #3695 and #3810 needing 60 votes to pass

Two cloture motions were filed on "the farm bill" long ago, and both are still hanging out in the background. One of those two is on Harkin's #3500 substitute amendment, the other is on the underlying bill, H.R.2419. The 60 vote hurdles could be imposed via objection, even if the the cloture motions hadn't been filed already. The preexistence of the cloture motions permits more flexible scheduling over objections. Uncertain is whether or not an objection will be made, forcing a 60 vote hurdle for quick passage of "the farm bill."

08:34: Senator Reid indicates an intention to pass "the farm bill" today (and the energy bill too). The Senate will stand in recess for an hour this afternoon, to hear a classified briefing from Admiral McConnell and AG Mukasey on secret snooping per FISA. This is preparatory to upcoming debate on FISA legislation.

He also indicates that the Democrats will NOT accept "cloak room calls from senator's staff" indicating objection to proceed. If a senator has objection, they must come to the floor and express it. This procedural change (and it is radical) will only be in effect for a few days, as the Senate is cramped for time to get lots of legislative [garbage] crammed through.

09:40: Dorgan/Grassley #3695 gets 56 AYE votes, and is rejected. On to a short debate before voting on taking up some back-room negotiated version of the energy bill.

10:07: Through "Gregg," I have 57 AYE, 40 NAY. Cloture will fail. The usual "defectors," mostly. For the GOP, Coleman, Collins, Lugar, Murkowski, Snowe, Smith, Grassley, Hatch, and Thune. For the Democrats, Landrieu.

10:12: Cloture on H.R.6 - a "compromise" energy bill, was REJECTED on a 59-40 vote.

Senator Reid says he intends to have the energy bill amended, removing the tax provisions, then send it back to the House. The energy bill is still alive and kicking, at least the CAFE (mandatory fuel economy) and provisions other than the 20+ billion dollar tax revisions and requirement for electric utilities to use renewable sources. In order to have an energy bill pass Congress before the weekend, he will file a cloture motion, if necessary, to have the Senate pass the energy bill as further amended. He makes the customary hollow threat to have a cloture vote on Saturday, but given the 59-40 vote on the bill with the objectionable tax included, the bill as further amended will easily pass without the kabuki dance of a cloture motion. Senator McConnell indicates that this will occur later today.

Senator Reid outlines the legislation he sees coming before adjournment sine die.

- Intelligence authorization conference report
- Defense authorization conference report
- FISA (to get the will of the Senate on record)
- Spending bill from the House - available next week Tuesday
- Iraq supplemental appropriations

Senator Reid notes particularly his discussions with Senator Coburn, and notes that Senator Coburn's various objections are taken as a matter of principle, not as a matter of politics.

Back to "the farm bill."


From FAS: CRS on the Foreign Intelligence Surveillance Act.

Good preparation for the upcoming debate, but the outcome is already carved in stone. Amnesty for the telecoms (either by statute, or by assertion of state secret), and no court oversight as long as the snooper utters "foreign intelligence" before acquiring a communications.

Also from FAS: White House Objects to FY2008 Intelligence Authorization Bill, including links to the WH policy statement (will veto).


Some farm bill voting action ...

16:32: Klobuchar #3810 rejected 48-46, far short of the 60 it needed
16:51: Tester #3666 rejected 40-55
17:10: Brown/Sununu #3819 rejected 32-63
17:25: Craig #3640 rejected 37-58


Jump over to the energy bill, the Senate will vote on its version, as amended, which will return to the House.

Other action for the 1st session of the 110th Congress, bills that PASSED the House:

- H.R.4351 - AMT Relief Act of 2007
- H.R.2082 - Intelligence Authorization for FY 2008
- H.J.Res.69 - Continuing Resolution
- H.R.1585 - Defense Authorization for FY 2008

Senator Reid blusters again on a cloture vote for "the farm bill," i.e., the bluster being conducting a cloture vote on Saturday in order to move to a vote on final passage.

18:24: The Senate agreed to H.J.Res.69, a one week Continuing Resolution, on a unanimous consent request. Then started a vote on the "new and improved" energy bill.

18:49: Further amended energy bill "PASSED" on a 86-8 vote.
NAY votes: Barrasso, Coburn, DeMint, Enzi, Hatch, Inhofe, Kyl, and Stabenow.


Back to "the farm bill."

20:00: Senator Reid came close to (maybe even did) file a cloture motion on one amendment, that relating to firefighters. So, closing out "the farm bill" won't be altogether smooth. He also had a few words on the FISA bill, indicating that it has to come up early next week.

20:35: Senator Reid give up on the amendment that gives the right to collective bargaining, because he can't get the Democrat presidential candidates on the floor of the Senate for a Saturday cloture vote -- and without them, he can't obtain 60 votes to obtain cloture. The amendment is withdrawn.

20:45: Senator Reid will, tomorrow, file a cloture motion on the motion to proceed to a FISA bill. Objection to proceed comes from Senators Feingold and Dodd, at least. A vote on the cloture motion on "the farm bill" (which was filed weeks ago) will be conducted at 9:00 p.m. tonight. That "flexible scheduling" comes in handy.

Blame for the hurried pace of completion is fairly laid at the intransigence in weeks gone by, where the farm bill was pending but with a full amendment tree. This "crunch" could be seen coming, weeks ago.

Tomorrow, finish "the farm bill," take up and pass FHA modernization conference report, and take up and pass the defense authorization conference report. FHA and defense are under time agreements.

21:02: The cloture vote to limit debate on "the farm bill" substitute amendment #3500 is underway.

December 13

I wandered away last night, confident that cloture would be obtained on the Harkin substitute. It was, on a 78-12 vote.

Today's action on "the farm bill" includes the following time agreement:

  • Cornyn Amdt. No. 3687, 30 minutes
  • Coburn Amdt. No. 3807, 70 minutes

In addition to "the farm bill," today's action is supposedly going to include passing a FHA modernization bill and the defense authorization conference report (H.R.1585). Taking up FHA modernization is contingent on final passage of "the farm bill," and I doubt "the farm bill" will take the 30 hours of debate it is allotted under "normal" cloture procedure.

FHA modernization UC Agreement: upon disposition of H.R.2419, the Senate proceed to the consideration of S.2338, an original bill to modernize and update the National Housing Act and enable the Federal Housing Administration to more effectively reach underserved borrowers, and for other purposes.

  • the only first degree amendments in order be
    • an amendment offered by Senator Coburn, relating to reverse mortgages, with a limit of 60 minutes of debate
    • an amendment offered by Senators Dodd and Shelby, relating to a moratorium [on the implementation of risk-based premiums for FHA insured mortgages]
  • there be 30 minutes of general debate on the bill


The House-passed Intelligence Authorization bill defines the limits of CIA conducted interrogation techniques to be the same as those in described in the Army Field Manual. The margin of passage was not veto proof. See HowAppealing's "House Passes Bill to Ban CIA's Use of Harsh Interrogation Tactics" for a link to that article and more, and JURIST's "US House passes intelligence bill restricting CIA interrogation tactics" for more.

Not worth much discussion, the limits will NOT be imposed as a matter of law. The limits may have a tough time getting out of the Senate in order to provoke a veto by President Bush. I suspect even Senator McCain (and his sidekick, mini-McCain, aka Senator Graham), who professes to be an "anti-torture" guy who holds that waterboarding is torture, will not approve of the limits imposed by the House bill.

I favor passage of the limits. Nobody says the CIA and government have to follow the law anyway, and an artificially lowered (fake) law might fool some terrorists into failing to prepare for the inevitable harsh interrogation by US forces. A veto of CIA interrogation limits would not be overridden, and would make the president directly accountable for approval of whatever CIA interrogation policy he deems appropriate.


Regarding the energy bill, the Daily Digest includes some procedural moves that occurred without visible floor action.

Senator Reid motion to concur in the amendments of the House to the Senate amendments to the bill, was ruled out of order.

Reid Amendment No. 3841 (to the House amendment to the Senate amendment to the text), in the nature of a substitute, was ruled out of order.

Reid Amendment No. 3842 (to Amendment No. 3841), to change the enactment date, fell when Reid Amendment No. 3841was ruled out of order.

What passed back to the House was "Senate concurred in the House amendment to the Senate amendment to the text of H.R. 6 ... with Reid Amendment No. 3850, in the nature of a substitute."

The text of the relevant amendments starts on page S15477 of the Congressional Record.


10:08: Due to a key player being absent this afternoon, Senator Reid requests and obtains consent to take up the FHA matter before getting back to "the farm bill," rather than after passing "the farm bill."

He indicates that a cloture vote on the FISA bill will occur Monday, at about noon. He indicates that he will bring the Intelligence version of the bill to the floor, with any amendments (e.g., those made by Judiciary) starting from there.

12:06: The FHA modernization bill, S.2338, passed 93-1. I would guess that Senator Coburn is the sole NAY vote. [Nope. It was Senator Kyl.]

Senator Reid moves to take up the Defense authorization bill next (H.R.1585), with an hour of debate, followed by passing H.Con.Res.269 with no intervening action or debate. A cloture motion will be filed later today on FISA. The cloture vote will occur around noon Monday, and he expects the Senate to be on the FISA bill starting Monday afternoon.

The last days of the session (next week) will be on appropriations. The House will send an omnibus appropriations bill to the Senate, likely on Tuesday.

13:55: The defense authorization conference report, H.R.1585, was agreed to 90-3.

Then, per previous agreement, H.Con.Res269 was passed. This corrects (or changes?) the printed version of the defense authorization conference report, as passed by the House

Now on to the farm report? Hahahah. The best laid plans, and all that.

15:03: Voting begins on passage of "the farm bill." It passed by a wide margin, 79 AYE votes. Now it goes off to conference committee.

Senator Harkin rehabilitates the absence of Senators Biden, Clinton, Dodd and Obama by indicating that each called with an offer to be on hand to vote for the bill, if their votes were needed. Heh. The votes were needed to obtain cloture on the first-responders collective bargaining amendment, not on the bill.

December 17

A bit of catch up from closing events of last week. I'll probably run a fresh "FISA" post, maybe starting this afternoon, maybe waiting until tomorrow. Senator Reid filed cloture on a motion to proceed to the original bill, S.2248. Original S.2248 lacks the amendments made by either the Intelligence or Judiciary committees, but other versions include committee amendment language.

The cloture vote is scheduled to start at noon today, following two hours of debate. Cloture will easily be obtained. We'll see how serious Senators Dodd and Feingold are about obstructing passage. If they are serious, they will object to voting on each and every amendment, and will insist on the time periods provided under the rules, when cloture is invoked. With that tactical procedure, it is possible to prevent the Senate from passing a FISA bill before next year.

News articles that couch the upcoming debate in their preferred terms:
NYT: "Wider Spying Fuels Aid Plan for Telecom Industry"
CQ: "Senate Set for Tough FISA Debate"


A couple of substantial bills passed on Friday, when few people were watching. These snippets from the Friday, Dec 14 daily digest.

Committee on Finance was discharged from further consideration of H.R. 3648, to amend the Internal Revenue Code of 1986 to exclude discharges of indebtedness on principal residences from gross income, and the bill was then passed, after agreeing to the following amendment proposed thereto:
  • Baucus Amendment No. 3856, in the nature of a substitute.


Senate passed S. 2488, to promote accessibility, accountability, and openness in Government by strengthening section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act).


A unanimous-consent agreement was reached providing that when the Senate considers the nomination of John Daniel Tinder, of Indiana, to be United States Circuit Judge for the Seventh Circuit, that there be 30 minutes equally divided between the Chairman and Ranking Member of the Committee on the Judiciary, and that at the conclusion or yielding back of time, Senate vote on confirmation thereon.


On the detainee front, in the long run, I was not surprised by the "revelations" in "Control sought on military lawyers" by Charlie Savage. Military lawyers, like US Attorneys, serve at the pleasure of the president. Some would argue that they should NOT have any independence whatsoever. If they don't follow orders and administration policy, then out with them.


A hard-fought constitutional battle brewing on the CIA tape destruction investigation, between Congress and the President, with Republican Representative Hoekstra uncharacteristically stepping out of line.

House vows to pursue CIA inquiry

Hoekstra said. "I think we will issue subpoenas."
On Friday, the Justice Department said it would not cooperate with any congressional investigation


10:10: First action this morning, immediately after the message was read naming Senator Reed (RI) as acting president of the Senate, was going into a quorum call. Majority leader Reid and minority leader McConnell are on the Senate floor. After about a minute, Senator Reid indicates the two hours of debate on the motion to proceed to S.2248. Interestingly, there is agreement to proceed directly to the bill if the cloture motion passes. [Senator Reid said, in language in the style of a UC agreement, that upon passage of the cloture vote on the motion to proceed, the motion to be agreed to and the Senate could be on the bill]. In other words, Senators Dodd and Feingold are NOT using all the tools at their disposal to block this bill. [My read of that sentiment was an inference based on Senator Reid's introductory language, styled in the form of a UC agreement] They could [and at least one of them did] insist on 30 hours of debate, following passage of the cloture motion.

Senator McConnell notes a list of matters that the Senate needs to pass before adjourning sine die; appropriations, FISA.

Senator Rockefeller says the FISA bill will protect the privacy of US citizens. And I am Mickey Mouse.

12:19: The cloture vote is underway. This will pass EASILY.

12:43: Cloture on the motion to proceed to S.2248, FISA modernization, was PASSED on a 76-10 vote.

"No one is intending to use the 30 hours" allotted post-cloture, so Dodd and Feingold don't intend to obstruct progress. All amendments to S.2248 will require 60 votes, which is a concession to the threat of obstruction.

Senator Reid announces that the omnibus spending bill is expected out of the House tonight, and that the Senate will take it up tomorrow. After that is done, whatever AMT bill has passed the House, and also terrorism insurance and SCHIP.

Link to WH Policy Statement on S.2248 - if Congress passes a bill without amnesty, President Bush will veto it.

19:28: Senator Reid says that time remaining in this session of Congress being short, he is going to set the FISA bill aside until January.

HowAppealing has links to several news articles.

December 18

From today's legislative calendar ...

                             CALENDAR OF BUSINESS

                          Tuesday, December 18, 2007   

                         SENATE CONVENES AT 10:00 A.M.

                               PENDING BUSINESS

                            S. 2248 (ORDER NO. 512)

       A bill to amend the Foreign Intelligence Surveillance Act of 1978,
   to modernize and streamline provisions of that act, and for other
   purposes. (Dec. 17, 2007.)

It will be set aside in favor of more urgent business, and I believe its status as "pending" will be removed when the Senate adjourns sine die later this week. The "pending" status is a concession to form. Cloture having been invoked on the motion to proceed, the motion to proceed had to have its ultimate fate determined, one way or the other. It couldn't be withdrawn.


This morning is "accolades to Senator Lott" morning.


Hamdan, the gift that keeps on giving.
See SCOTUSblog: "Potential new obstacle to Hamdan trial"

Judge Allred presiding over a Military Commission at GTMO has granted Hamdan's motion to a hearing to determine whether or not Hamdan is a POW.


The Senate is on H.R.2764 - Consolidated Appropriations Act, 2008. This bill is, umm, rather large in scope. It's a safe bet that no Senator has read it.

19:24: Another "pull out of Iraq" amendment shot down, this one Feingold's, on a vote of 24-71. Given that margin, this must have been one of those with a statutory mandate, rather than a sense of the Senate. It also had a date of 9 months from passage of the bill, i.e., about August, 2008.

Next shot, a Levin amendment (#3876), "Sense of the Senate" on the same subject. These usually get about 56 votes: all the Democrats, plus Senators Snowe, Collins, Smith, and Hagel.

20:30: Levin amendment (#3876) rejected 50-45, needing 60 votes to pass. "Snowe, Collins, Smith and Hagel" was a good guess, plus a new defector, Senator Dole.

20:50: McConnell Motion to Concur in House Amdt. No. 2, with an Amdt. No. 3874, was passed 70-25, needing 60 votes to pass. Senator Smith was the only Republican casting a NAY vote.

21:30: Reid Motion to Concur in House Amdt. No. 1, with an Amdt. No. 3877, was rejected 48-46, needing 60 votes to pass. Senator Snowe was the only Republican voting with the Democrats.

22:57: The Motion to concur in House Amdt. No. 1 to H.R.2764 - Consolidated Appropriations Act, 2008, was passed 76-17. That's a veto-proof majority.


Last vote of the night will be to confirm John Tinder to the 7th Circuit. Senator Leahy notes that the Democrats have confirmed more judges this year, than Republicans did in 1998, 1999, etc. I have a feeling that confirmation of Circuit Court judges will be slowed to a snail's pace from here on to the end of President's Bush's term in office.

23:16: John Tinder was confirmed, 93-0. I've updated the Circuit Court Nominations Summary accordingly.


23:20: Senator Enzi spoke in opposition to the omnibus spending bill, aka, H.R.2764 - Consolidated Appropriations Act. The bill is 3400 pages in length, and he notes too that no Senator has read it. In addition, he notes that the bill lacks transparency, and that the accounting gimmicks in it, if used by a business executive, would literally constitute a criminal offense. He also indicates that it runs afoul of the "no legislation on a spending bill" rule. Well, he can raise a point of order (or points of order), but he won't (can't actually) because doing this correctly would take more time than the Senate is willing and able to spend to do it right.


00:09: Senator Lott's letter of resignation is formally entered into the journal. The Senate stands adjourned until 11:30 later this morning.

December 19

The FISA modernization bill, S.2248, is still pending. I don't recall watching the "pending" status of a bill as Congress moves from a 1st to a 2nd session (at the close of a 2nd session, all "pending" status is wiped out), so this will be a test of my assertion that any adjournment sine die wipes out pending status.

List of amendments to S.2248, and a link to the text of the amendments offered on December 17th. The amendments and the bills survive adjournment sine die between 1st and 2nd sessions (as does the legislative calendar), the only aspect of the proceeding that I think is cleared is pending status. Worst case for those interested in speedy passage is having a do-over of the motion to proceed. In that case, I doubt Senator Dodd would object, even though he has the right to.

"The Hill" reports, Reid considers extending Protect America Act for one month to buy more time. This would be a simple one month extension of current law. The reason for extension is to separate the issue from the Democrat primary.


H/T HowAppealing, Charlie Savage reports that the administration has reversed its plan to exert direct control over the promotion of military lawyers.


If Senator Reid's outline of action from Monday is still valid, the business of the Senate includes the following menu of items: whatever AMT bill has passed the House, terrorism insurance, and SCHIP.


11:40: Morning business for most of the day. No roll call votes. The Senate will ask the House to return the papers for the omnibus spending bill - I presume some error correction.

S.924 is passed with a Cantwell amendment.

S.1784 is passed but with a substitute amendment that is at the desk.

11:47: Senator Reid briefly described a meeting with WH chief of staff, to determine whether or not to implement a tentative plan to keep the Senate "in session" via periodic pro forma meetings between the December adjournment and the January opening of the 2nd session of the 110th Congress. The point of those pro forma meetings would be to prevent recess appointments.

I have no idea how the Senate could have a meeting, post adjournment sine die, and before opening the 2nd session. There would be no session of Congress to conduct a pro forma meeting under. Perhaps he will seek to obtain a resolution calling for a special session, if he can't get a suitable agreement from the WH on recess appointments.

Looks as though morning business speeches will be dedicated to senators' various staff members.


December 18, 2007.
President of the United States Senate,
Washington, DC.

    DEAR MR. PRESIDENT: I hereby give notice of my retirement from the Office of United States Senator from the State of Mississippi. Therefore, I tender my resignation effective at 11:30 p.m., December 18, 2007.

Respectfully submitted,

Trent Lott,
United States Senate.


Technical review and analysis of Military Judge Allred's order relating to Hamdan, by Bobby Chesney in "Hamdan to receive GPW art. 5 POW status review," and by Geoff Corn in Some More Perspective on Hamdan's Article 5 Tribunal." Both pieces at the National Security Advisors blog.


16:19: Following a Byrd holiday speech, Schumer passed a few bills under UC. Senator Landrieu is in "the chair," and she looks and sounds particularly unhappy.


18:26: Senator Reid described the legislation that will be taken up in the remainder of the 1st session, noted a plan to extend the PAA (FISA) for 30 days, next year, and that he would bundle some 10-20 bills held up by Senator Coburn into one vehicle, this year.

He also indicated that he could not obtain a suitable agreement with the WH, so he is planning to hold the Senate in a series of pro forma sessions between adjournment and initiation of the 2nd session. He named Bradbury as a particularly objectionable nominee.

Another short-term continuing resolution was passed. Last weeks "one week" extension was a bit too short.

December 20

An interesting artifact of belaying overnight adjournment, and instead taking a recess, is that the Senate is on a legislative day that is different from the calendar day. This is the cover of "today's" legislative calendar.

                             CALENDAR OF BUSINESS

                           Friday, December 21, 2007

                     (Legislative Day, December 19, 2007)

                         SENATE CONVENES AT 9:30 A.M.

                                  (In Recess)

                               PENDING BUSINESS

                            S. 2248 (ORDER NO. 512)

       A bill to amend the Foreign Intelligence Surveillance Act of 1978,
   to modernize and streamline provisions of that act, and for other
   purposes. (Dec. 17, 2007.)


The UC agreements in same legislative calendar provides clues for upcoming action, this year and next.

  • S.1974 - Technical corrections to Pension Protection Act of 2006. This will be passed by UC upon receipt of the House counterpart, but the passed bill will be returned to the calendar.
  • S.2483 - National Forests, Parks, Public Land, and Reclamation Projects Authorization Act of 2007. This is a collection of approximately 50 bills, all passed by the House, some of which Senator Coburn has objected to, all bundled into one vehicle. The UC agreement provides Senator Coburn with the ability to debate five amendments. Nobody else in the Senate has enough nerve to object to the pork.
  • on Tuesday, January 22, 2008 - the Senate proceed to the consideration of S. 1200 - Indian Health Care Improvement Act Amendments of 2007.

The House yesterday agreed to the Senate amendments to the AMT extender H.R.3996, so that bill needs no further Senate action.


S.Con.61 is the Senate's proposed "adjournment" resolution for the 1st session of the 110th Congress. It sets up a system for limiting the days between sessions. Note the Dec 18-31 timeframe for presenting a motion to adjourn, and that presenting the adjournment motion is solely the right of the majority.

This style of sine die adjournment (flexible timing, through Dec. 31, for making the motion to adjourn sine die; a pro forma session on or about January 3rd) was used by Senator Frist in the transition between the 1st and 2nd session of the 109th Congress. [See H.Con.Res.326 of 2005]

I expect no motion to adjourn until late December, because a motion to adjourn will work an adjournment sine die. Following that event, the 1st session of the 110th Congress is formally concluded, kaput, over and done. The January 3 pro forma session, followed by either recess or adjournment, starts a new session.

Resolved by the Senate (the House of Representatives concurring), That when the Senate adjourns on any day from Tuesday, December 18, 2007, through Monday, December 31, 2007, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand adjourned sine die, or until the time of any reassembly pursuant to section 3 of this concurrent resolution; ...

SEC. 2. When the Senate recesses or adjourns on Thursday, January 3, 2008, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it shall stand recessed or adjourned until noon on Tuesday, January 22, 2008, or such other time on that day as may be specified in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 3 of this concurrent resolution, whichever occurs first; ...

SEC. 3. The Majority Leader of the Senate and the Speaker of the House, or their respective designees, acting jointly after consultation with the Minority Leader of the Senate and the Minority Leader of the House, shall notify Members of the Senate and the House, respectively, to reassemble at such a place and time as they may designate if, in their opinion, the public interest shall warrant it.

For recent historical perspective of the interval between sessions of Congress, the Senate adjourned sine die on December 9, 2003; December 8, 2004; December 22, 2005; and December 8, 2006.

I wonder if the procedural stunt to prevent recess appointments is unprecedented. If it is, it's just piling another defective process on top of pre-existing defective process.

The recess appointment power has been misconstrued for ages. If recess appointments were limited to vacancies that HAPPENED during a recess (not pre-existed), there would be more pressure on the Senate to act on nominations - up or down - promptly.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

US Const., Art. II, Sec. 2

All in all, I think an "up front and prompt" manner of getting on with nominations would be superior to the games being played by holding nominations without disposition, avoiding votes by abusing cloture, justifying recess appointments by the fact of Senate inaction, and so forth.


H/T HowAppealing, Hamdan has been found to be an unlawful enemy combatant, not a POW. I have to laugh a bit inside, at epithets aimed at Military Judge Allred, for entertaining an argument, and ruling one way or the other, that Hamdan was a POW.

Text of Judge Allred's order (OCR conversion of PDF file)


Heh. The 1st session is over, but for formalities. Note the "recess after each [pro forma] session," as opposed to adjournment. Adjournment at the end of each day is the norm, and is the means for closing one legislative day to permit starting another.

Mr. REID. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in recess until 9:30 a.m., Friday, December 21, and that on Friday, the Senate meet in pro forma session only, with no business conducted; that at the close of Friday's session, the Senate then meet in pro forma session, with no business conducted, on the following days and following times and recess after each session:
Sunday, December 23, at 11 a.m.;
Wednesday, December 26, at 9:30 a.m.;
Friday, December 28, at 10 a.m.;
Monday, December 31, at 10 a.m., and that at the close of the pro forma session on December 31, the Senate stand adjourned sine die, pursuant to S. Con. Res. 61, as amended, until 12 noon, Thursday, January 3, 2008, for a pro forma session only,
and the Senate then recess until Monday, January 7, at 9 a.m., to meet in pro forma session, as provided previously, and meet on the following days and recess over each period:
Wednesday, January 9, 11 a.m.;
Friday, January 11 at 9:30 a.m.;
Tuesday, January 15, at 11 a.m.; and
Friday, January 18, at 10 a.m.; that at the close of that session, the Senate then reconvene on Tuesday, January 22, at 10 a.m.; that the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and then there be a period for the transaction of morning business for 60 minutes, with Senators permitted to speak for up to 10 minutes each, and the time be equally divided and controlled between the two leaders or their designees, with the Republicans controlling the first half and the majority controlling the final portion, and that the Senate then proceed to S. 1200, as previously provided.

Another "close of business" event is the handling of pending nominations.

Mr. REID. Mr. President, as in executive session, I ask unanimous consent that, the provisions of rule XXXI notwithstanding, all nominations remain in status quo except the following: from the Armed Services Committee, Colonels Larry Arnett, Otis Morris, and Gilberto Pena to be brigadier generals; Colonel Marc L. Warren to be brigadier general; Colonel Mark W. Tillman to be brigadier general; Anita K. Blair, of Virginia, to be an Assistant Secretary of the Navy; from the Committee on the Judiciary, Steven G. Bradbury, of Maryland, to be an Assistant Attorney General.


The Senate passed H.R.2640 - NICS Improvement Amendments Act of 2007, with Leahy/Schumer substitute amendment #3887. (text starts at page S16024)


AP: "Tancredo Drops WH Bid, Endorses Romney"

Senator Allen is making a campaign speech - he's running for president, doncahknow. [I think Romney is the selected one.]
Senate Live - June 21, 2006

December 21

Nothing happening, this just to memorialize the continuation of "legislative day of Dec 19" into Sunday the 23rd.

                             CALENDAR OF BUSINESS

                           Sunday, December 23, 2007   

                     (Legislative Day, December 19, 2007)

                         SENATE CONVENES AT 11:00 A.M. 

                                  (In Recess)
                               PENDING BUSINESS

                            S. 2248 (ORDER NO. 512) 

       A bill to amend the Foreign Intelligence Surveillance Act of 1978,
   to modernize and streamline provisions of that act, and for other
   purposes. (Dec. 17, 2007.)

December 23

CIA Tapes Were Kept From 9/11 Panel, Report Says

A seven-page report for former commission members by the panel's former executive director, Philip Zelikow, says the group made broad initial requests for intelligence information from interrogations, "including repeated requests for very detailed information" about the interrogations and how they were carried out. ...

CIA officials have said that the tapes were not provided because the commission did not specifically ask for them.

"The notion that the CIA wasn't cooperating or forthcoming with the 9/11 Commission is just plain wrong," agency spokesman Mark Mansfield said. "It is utterly without foundation. CIA cooperation and assistance is what enabled the 9/11 Commission to reconstruct the plot in their very comprehensive report."

Mr. Mansfield's definition of "forthcoming" is different from mine. The CIA was clearly NOT forthcoming with evidence that it knew it had. It's reason for withholding evidence when faced with a broad request for detailed information is "you didn't specifically ask for tapes." I'll bet if tapes had been asked for (generically), the reason would have been "you didn't specifically ask for THOSE tapes," or you didn't specify VIDEO tapes, or some other "technicality.

December 24

RIP, Oscar Peterson. I dunno if you and I subscribe to the same belief regarding salvation, but if we do, I look forward to meeting you in the afterlife.

And at this moment, I am reflecting on the birth of God on earth, Jesus Christ, my Lord and Savior.

December 27

And the beat goes on ...

                             CALENDAR OF BUSINESS

                           Friday, December 28, 2007   

                     (Legislative Day, December 19, 2007)

                         SENATE CONVENES AT 10:00 A.M. 

                                  (In Recess)

                               PENDING BUSINESS

                            S. 2248 (ORDER NO. 512) 

       A bill to amend the Foreign Intelligence Surveillance Act of 1978,
   to modernize and streamline provisions of that act, and for other
   purposes. (Dec. 17, 2007.)


Bad news on the foreign front, Bhutto of Pakistan being assassinated.

U.S. Lawmakers Were to Meet With Bhutto - Associated Press

Two U.S. lawmakers scheduled to meet Thursday with former Pakistani Prime Minister Benazir Bhutto and President Pervez Musharraf were advised to leave the country after Bhutto's assassination.

Sen. Arlen Specter, R-Pa., said in a telephone interview from his Islamabad hotel room that he and Rep. Patrick Kennedy, D-R.I., were to dine with Musharraf and meet later in the night with Bhutto. ...

The lawmakers said they were cutting short their trip by a day on the advice of the State Department.

December 31

Big day scheduled for the Senate. Adjournment sine die.

                             CALENDAR OF BUSINESS

                           Monday, December 31, 2007   

                     (Legislative Day, December 19, 2007)

                         SENATE CONVENES AT 10:00 A.M. 

                                  (In Recess)
                               PENDING BUSINESS

                            S. 2248 (ORDER NO. 512) 

       A bill to amend the Foreign Intelligence Surveillance Act of 1978,
   to modernize and streamline provisions of that act, and for other
   purposes. (Dec. 17, 2007.)


You can't make this stuff up. I can see why a speaker would bury something like this in "extended remarks" for a date when the House wasn't even in session.

Chimp Haven is Home Act

Mr. McCRERY ... This legislation [S.1916] removes the "return to medical research clause" from the law and will give everyone involved with Chimp Haven peace of mind because the chimpanzees will be able to grow old peacefully in their new home ...


GTMO detainee dies of cancer. This may be an interesting case. After skimmingthrough the first 30 or so pages of his testimony and the evidence of his "guilt," he sure doesn't come off as a "worst of the worst" type. A couple more article links at HowAppealing summarize the opposing points of view.

60 of the 275 detainees presently at GTMO have been cleared for release. That strikes me as a whopping big percentage, especially after having them in custody for a few years.