Monday, January 28, 2008

Brewing Another FISA Delay

Senate action of FISA amendment is reaching an interim crescendo this afternoon. Here is how I predict events will play out.

2:00 to 4:30 - Piss and moan about the options at this time, GOP blaming the Democrats for bad timing, obstruction, and soft on terrorism; DEMs blaming the GOP for not admitting amendments and being the cause of delay.

4:35 - cloture vote to limit debate on S.Amdt.3911, the SSCI version of FISA begins. It obtains fewer than 50 votes, well short of the 60 needed to pass. Lieberman will vote AYE, Specter will vote NAY. In other words, I expect a straight party-line vote, other than those two crossovers.

The rationales will be mixed between "get a bill to the president - he'll veto this if it's amended and he'll sign it if it isn't" (GOP lockstep reason to vote AYE), and "the parliamentary procedure in the Senate hasn't allowed enough amendment and debate, to vote NOW to limit debate " (DEM lockstep reason to vote NAY)

5:00 - There will be more debate to "sell" the 30 day extension embodied in S.Amdt.3918. The GOP will again caterwaul about Reid and the Democrats inability to schedule and prioritize (e.g., we could have done FISA instead of Indian Health Care) The amount of debate here will be brief, something between 2 minutes and one hour.

5:10 - cloture vote to limit debate on S.Amdt.3918, a 30 day extension to the Protect America Act. This will pass easily, with NAY votes being more a poke in the eye to Senator Reid for not scheduling the FISA bill to come before the Indian Health Care bill. There will be massive GOP agreement to the extension, "reluctantly, but necessary given the alternative of PAA lapse."

5:30 - Another short period of piss and moan, then pass the 30 day extension, probably on a voice vote, maybe on a roll call vote.

The WH will piss and moan about the Senate, and even though a "senior administration official" has said the President would veto an extension, given the choice between an extension and "going dark" (the administrations' characterization of a lapse in PAA), well, there isn't any choice. President Bush won't choose going dark, that's for sure.

What's next in the Senate? My best guess is split between shifting to the economic stimulus package (probably not, I don't think it's out of the House yet), or going back to S.1200, the Indian Health Care bill.

I think the Senate will handle the economic stimulus package before picking up FISA again. I figure FISA will be the business of the Senate about three weeks from now, 17-18 days into the 30 day extension. The delay, rest and diversion works to the advantage of the administration and the Senators who don't privately object to retroactive immunity, but want to voice public objection. The advantage comes from the letdown inherent when an issue is set aside. Any momentum built by privacy advocates is lost. Enthusiasm wanes, and the opponents get weary.

Alternative Outcome: If Reid doesn't get cloture on the extension, he'll vote NAY and move to reconsider the cloture vote, so the Senate can have a cloture vote do-over on short notice. A Reid cloture vote do-over on short notice would be an attractive option if the Senate (Dodd) successfully blocks timely passage of the SSCI version later in the week, and the Senate becomes unable to deliver SSCI to the House in time to put a bill on President Bush's desk by Friday.

[Later note: having a House-passed 30 day extension is outcome equivalent of a cloture vote do-over on short notice. If the House delivers an extension, Reid will have the ability to put an extension before the Senate on short notice. The Republicans, to prove their objection to an extension, can force cloture on taking the extension bill up, and can force cloture on passing the extension.]

FISA seems to be a minor issue this time around, to the "legal techie" blogs that I visit. No mention at Volokh, Balkin, or Patterico. Also not at the primarily election-focused NRO Corner. However, the Electronic Frontier Foundation, ACLU, Brennan Center and left-leaning blogs have been quite vocal and active against the retroactive immunity provisions. Unfortunately, neither side has developed a running theme or debate on the statutory language in Title I of the bill, the details that describe the provisions that guide the interaction between the FISC and the snooper; and purport to limit the range of warrantless snooping.

A Technorati search on "FISA" confirms the hunch that the issue is generating more heat from the left than from the right. I don't know any way to preserve the results of that search, so hit it while it's relevant.

---=== 14:07 ===---

Senator Reid wants to clear Governor Shafer to be Secretary of Agriculture for appointment by President Bush, and to have that done before the State of the Union address.

The cloture vote on S.3918 is pushed out to 4:40 p.m., without objection. If cloture is not invoked, then a vote on the cloture motion for S.3918, the 30 day PAA extension. At 9:00 p.m, the State of the Union.

S.2557, the extension of PAA to July 1, 2009, was read a second time, which will cause it to be placed on the Senate's legislative calendar.

14:18: Senator McConnell anticipates no difficulty in clearing Governor Shafer to be Secretary of Agriculture. He then segues into a call for bipartisanship to reauthorize the PAA and to provide an economic stimulus package.

His prepared remarks first emphasize economic stimulus, and the differences of opinion that are coming to the fore between the House-negotiated package.

With regard to the FISA bill, he points to legislation creating the office of the Director of National Intelligence (89-10), followed by DNI's request for revisions to FISA. I just want to repeat that DNI's initial requests for FISA revisions, in 2006, made no call for retroactive immunity. That is a new call, coming AFTER the FISA Court rejected the administration's legal rationale underpinning the warrantless TSP or similar program.

He argues against amendment to the FISA bill, as it would guarantee failure (i.e., veto), and against delay, as delay (extension) is simply political cover to permit a meaningless vote against cloture on the Bond/Rockefeller amendment. Meaningless because those same senators will later vote to pass it, or at least will fail to block it. His voice does not sound confident in obtaining cloture this afternoon.

14:25: I'll be half-listening to the Senate while I work. I'll post summaries of any "critical" comments I hear (e.g., a GOP Senator announces he will vote NAY on cloture, or a DEM Senator announces he will vote AYE), and skip commentary on the routine debate, such as Senator Hatch's upcoming talk as to why he will vote to invoke cloture on Bond/Rockefeller. My point of reference is a party line vote, and I'll try to be quick to point out where my prediction falls apart.

14:45: Senator Specter is OPPOSED to the motion to invoke cloture on the Rockefeller/Bond amendment I predicted this on Friday, but it is a GOP vote against cloture. Senator Specter's objection is rooted in the parliamentarian ruling that his amendment would be not germane, post-cloture, and therefore would not come up for debate or a vote.

15:05: Shafer is confirmed as Secretary of Agriculture on unanimous consent.

15:07: Senator Rockefeller announces his opposition to cloture on his own amendment. He's using stern rhetoric against the administration, asserting that they are addicted to placing politics above national security, in a fashion that is irrational and self-destructive (his words, my paraphrase).

He also asserts that "immunity" under the SSCI bill is tightly qualified, and suggests that it subjects the administration's past warrantless surveillance actions to close court scrutiny. I need to study Title II of S.Amdt.3911 before I form an opinion either way.

[Okay, I've looked at it. It's immunity as far as I'm concerned. The process is for the AG to submit a certification in secret, the certification need only assert that the search order was lawful (without defining "lawful"), and the court rules on an abuse of discretion standard. Further, the Bond/Rockefeller immunity relaxes the law, to permit search directives to have emanated from and have been certified by "the head or deputy of an element of the intelligence community," but FISA requires warrantless surveillance to be certified by the AG, pursuant to an order from the president.]

He looks for passage of the bill before the end of the week.

Same speakers coming, as last week: Bond, Cornyn, Chambliss for the GOP, to use the time before the cloture vote.

15:55: Senator Cornyn misses the argument being over the question of retroactively removing the teeth from the federal privacy laws, and instead argues about the actual searching. Well, the PAA is VERY aggressive as regards searching -- more aggressive in snoop authority without oversight and less protective of personal privacy than proposed Title I of the Bond/Rockefeller bill. And extending that more aggressive search authority damages the search ability, how? Answer, it doesn't.

This part of Senator Cornyn's argument, against extension and for the Bond/Rockefeller bill, is contra to the actual competing legislation.

16:05 - 16:08: Quorum call. Time charged equally. Senator Bond decides to fill the time.

16:27: Senator McConnell refers to the decision to go the Indian Health Care bill as partly to blame for being in this time-jam. He sounds resigned to an extension, and says that the GOP will vote for an extension if necessary, i.e., if the Bond/Rockefeller bill can't be passed in time to be on President Bush's desk on February 1st.

16:32: Senator Reid has the last word. No new arguments. He says it's off for the GOP to delay their own bill (out of fear of amendments), but proponents routinely tie up their own bill out of fear of amendments, see Reid's filling the amendment tree on "the farm bill" for a parallel example, and Frist's filling the tree on the "Trifecta" of estate tax, tax extenders, and [I forget the third part]; and veto threats are common political rhetoric. Buck up, Senator Reid, take a position and get on with it. An extension isn't unreasonable given the time press. The politicians need time to express their cover stories.

16:43: Cloture vote is underway.


17:10: The cloture motion to limit debate on Bond/Rockefeller S.Amdt.3911 (SSCI version of FISA), was REJECTED on a 48-45 vote. [predicted 49-50]
GOP Nay votes: Specter
DEM Aye votes: Landrieu, Lincoln, Nelson (NE), Pryor
Not voting: Coburn, Dole, Ensign, Harkin, Lieberman, McCain, Nelson (FL)

I missed some crossovers in my prediction: Landrieu, Lincoln, Nelson (NE), and Pryor

17:10: Senator McConnell argues against invoking cloture on the 30 day extension, because President Bush says he will veto it. Perhaps there will be a short term extension later in the week, but the Senate will be on FISA after this vote (won't move to a different bill), so it makes no sense to pass a 30 day extension, faced with a promise to veto.

17:13: Senator Reid says the House is going to pass a 30 day extension tomorrow morning. "People are crying wolf a little too often." The cloture vote starts at 17:14.

17:30: The cloture motion to limit debate on Reid S.Amdt.3918, to extend the PAA by 30 days, was REJECTED on a 48-45 vote. [predicted 75-24]
Pure party line, "Not voting" the same as above.

I missed that one by a fat margin. Senator McConnell's suggestion of a possible short extension, plus knowing that the House will be forwarding a 30 day extension bill sometime this week, permits deferring the "extension or S.2248?" decision for a few days.

The House bill also leaves the paperwork of S.2248 in place, avoiding the need to start over again with a new bill number. If S.2248 became the vehicle to send an extension to the president, a new vehicle would be needed for Senate FISA legislation. That would introduce the "Motion to proceed to the consideration" and other steps that could be objected to.

Those reasons, ability to defer a decision (always good for the indecisive), simpler paperwork, and quicker passage of the (predestined) SSCI bill by avoiding objection to introducing the same matter as a new bill number, those reasons are certainly sufficient justification to vote NAY on the cloture motion. Also, that the NAY vote doesn't affect the ultimate outcome in any way, shape or form.

17:33: The Senate is in recess until the SOTU address.

The Senate will have three options to deal with after tonight, basically deferring for a day or two, a decision to send an extension to the president.

One option or path is to amend S.2248 under some sort of amendment/vote threshold deal, and have that done, sending the SSCI bill to the House before Friday, so Speaker Pelosi can give it the royal treatment.

But if it's clear later in the week that THIS sequence can't be completed by Friday, the Senate can take up and pass the House-passed 30 day extension, and that Congressionally-passed measure would become law if signed by the president.

Or, in the alternative to the 30 day extension, the Senate can create and pass its own, shorter extension and punt that to the House for its concurrence.

I pick Door No. 2 for reasons of Senate timing, and of accommodating the House.

If the Senate bogs down during debate of S.2248, on amendments not yet pending, and if Dodd insists on another cloture vote before voting to pass S.2248 (he must do that in order to adhere to his principle of blocking immunity by all means available to him), then S.2248 can't be ready until Friday at the earliest. Here's the timetable given an objection working within the rules:

Some debate tomorrow, things move along, and there is a request to schedule a vote on S.2248. Dodd objects and McConnell files another cloture motion. That cloture vote happens Thursday morning, then 30 hours after that, if cloture is invoked, the Senate get to the vote on the bill. That would be mid-afternoon Friday. I don't think it's possible to get the SSCI bill from the Senate, passed by the House without amendment, and then to President Bush on the same day.

A short extension gets around that objection, and could set things up for the bill (S.2248, not the extension) going to the House early next week. But Dodd can bollix that up too, by objecting to vote on a short extension (causing the same cloture timeline described above), and insisting on the 30 day extension. Likewise the House could signal unwillingness to do a short extension, based on a desire to review the document dump and inject that into the public psyche via debate.

January 29

The Senate is scheduled to meet at 10:00 a.m., and resume consideration of FISA amendment after morning business.

REID: Everyone here should understand, if you are voting today not to extend this legislation for 30 days, you are going to have to vote on it in the near future because the House is sending us the exact same measure tomorrow.

An interesting point in that section of the Congressional Record appears before the cloture vote on the Bond/Rockefeller amendment. Each side announced how one of their senators would have voted, if present. Usually, this announcement is simply "necessarily absent." The two senators who had the vanity to request their position be announced were Harkin and Dole.

Separately, Senator Nelson of Florida entered his own announcement, after the fact. This is customary. He said he would have voted with the Democrats on both cloture motions. Well, yeah, he's a Democrat, and he wants to have the issue both ways -- against immunity, but willing to vote for it.

REID: Let us not forget: The question of retroactive immunity wouldn't be before us if President Bush hadn't ignored Congress and established his own process outside the law.

True, that. Also true that the issue wouldn't be before the Congress if some actor inside the administration hadn't leaked the allegation of snooping without warrants. "There is no snooping, no violation of privacy, if it's done in secret!"

I'd love to invade the privacy of elected personalities, in secret of course. And being "in secret," it doesn't count as an invasion.


Transcript of President Bush's State of the Union Address

The actions of the 110th Congress will affect the security and prosperity of our nation long after this session has ended. ...

Dedicated men and women in our government toil day and night to stop the terrorists from carrying out their plans. These good citizens are saving American lives, and everyone in this chamber owes them our thanks.

And we owe them something more: We owe them the tools they need to keep our people safe. And one of the most important tools we can give them is the ability to monitor terrorist communications. To protect America, we need to know who the terrorists are talking to, what they are saying, and what they're planning. Last year, Congress passed legislation to help us do that. Unfortunately, Congress set the legislation to expire on February the 1st. That means if you don't act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger. Congress must ensure the flow of vital intelligence is not disrupted. Congress must pass liability protection for companies believed to have assisted in the efforts to defend America. We've had ample time for debate. The time to act is now.

If immunity is required, in order to track terrorists, then we haven't been tracking terrorists for the past six months, or maybe longer, eh?

I don't buy that immunity is required, for either of the reasons stated (needed in order to insure cooperation, letting lawsuits proceed risks disclosure of classified methods of communications interception), but the Congress is gullible and will capitulate to the illogical argument that "immunity" is required.

On the argument of compliance, we don't give the public immunity from prosecution for paying taxes in order to promote cooperation. The snooping law contains a stick to encourage voluntary compliance, just as tax law does. Immunity is not required for compliance.

And the government can protect classified information in lawsuits, it does so routinely -- probing the government's surveillance POLICY is no different in that regard. The technical method involved in the surveillance need not be disclosed, or the method is already common knowledge (tap the communications signal and listen). My thought is that the administration is perverting language again, and is equating snooping POLICY with "snooping procedures." It seems the administration is asserting its POLICY (the extent of snooping in the US, without a warrant) is classified.

H/T HowAppealing, two additional articles on the subject of closing courts to plaintiffs who allege fourth amendment violations. From Is It Constitutional for the Senate to Retroactively Immunize:

The causes of action that were triggered by the violation of FISA concerned privacy, a tort interest recognized by almost every state's common law, and possibly protected by an implied right of action under the First and Fourteenth Amendments as well. Congress was not creating a right out of whole cloth; it was providing a forum to recover damages for the violation of a right which that had already been established as a matter of common law and constitutional law.

At NRO, Andrew McCarthy weighs in today, with Dont Give In on FISA Reform, Mr. President.

On the subject of immunity looking forward, is there not a need to repeal 50 USC 1809 [A person is guilty of an offense if he intentionally-- (1) engages in electronic surveillance under color of law except as authorized by statute] and 50 USC 1810 [right to a civil cause of action with VERY limited grounds for prevailing, the defendant "must have disclose[d] or use[d] information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute."]

Because as long as that is on the books, there is a risk of a future legal action. Get the penalties off the books, or else face a call for retroactive immunity again in the future.

But seriously, in those statutory causes of action, one can see exactly why the administration wants the cases out of court. Even Senator Bond said directly that the snooping was done under color of law, and the administration admits (other than the utterly ridiculous AUMF argument) that the surveillance was not authorized by statute. If the facts come out in court, a conclusion that there was a violation of 50 USC 1809(1) is inescapable.

Not that it would be prosecuted, and also auguring in favor of repeal, 50 USC 1509(1) is a farce because it would require a federal prosecutor to bring a case, and that will NEVER happen, as long as the snooper and prosecutor work for the same boss.

"Rule of law," my ass. Just get rid of the darn law, so we don't have hollow and pointless criminal offenses and civil remedies taunting gullible people.

But that would take honesty and principle, qualities utterly absent from politicians.


House of Representatives Committee on the Judiciary
Oversight Hearing on Reform of the State Secrets Privilege

Looks like a lopsided panel, in favor of reigning-in the privilege. The Committee page has a funny typo, "Electcronic Frontier Foundation."


HowAppealing links to a pair of interesting articles on the administration's brief in the Second Amendment case, Has the Bush administration abandoned gun rights advocates?

Benjamin Wittes thinks the brief is well-posed from a policy standpoint. And he also takes this position in general: "I would prefer simply repealing what Levinson once called 'the embarrassing Second Amendment.'"

The comments following Jan Crawford Greenburg's article are thought provoking. I agree that adoption a judicial standard of intermediate scrutiny is an invitation to gut the "protected" rights of individuals, as against the state. And intermediate scrutiny is what the administration advocates.


Also via HowAppealing, 5th Circuit to Weigh Jurisdiction Over Contractors in Iraq is a riveting read about the intersection of civilian employees following military orders, and their ability to find relief in a US Court on the grounds that their employer mislead them with promises "that they wouldn't be participating in military operations or driving in combat zones."

The contractor companies argue that the cases have no play in any court, because resolving the ultimate issue amounts to second guessing combat decisions made by the military.

---=== 10:26 ===---

Senator Reid has no clear comment as to scheduling FISA pertaining to debate . He notes that FISA, Indian Health, and an Energy bill are the legislation he's considering, and the Senate will likely move to one of them later today. The Finance Committee will offer its take on the economic stimulus package tomorrow.

On the subject of FISA, if the Senate doesn't do something on it today, the PAA will expire. He gives the Republicans the right to choose the appropriate duration of extension.

Senator McConnell notes that the Senate has had six months to work on this, and now the Senate is faced with a three day deadline. He speaks about the risks of permitting the PAA to expire, that if it expires, we will "go dark" on new targets. That amounts to an assertion that we were "in the dark" from whenever, until August last year, regarding foreign targets.

McConnell correctly notes that there isn't enough time (in three days) to go amendment by amendment through S.2248, and that the GOP is willing to a short extension. He's proposed an amendment (to S.2248, I presume) and is currently engaged in negotiation with the DEMs as to accepting it.

Senator Reid correctly notes that expiration of the PAA, if it occurs this week, is at the feet of the GOP and President Bush. He advocates extending the search authority for an extended period of time, e.g., 18 months, and leaving the issue of retroactive immunity for future debate, standing on its own. It's about time somebody made a serious effort to divorce the two issues.

Senator Durbin chimes in on the point of responsibility for the present risk of lapse of PAA, and rejection of an extension is clearly stated by the GOP.

Senator Dorgan notes that delay last week was attributable to GOP objection to taking up of amendments. True, that.

Senator McConnell steps in on the subject of retroactive immunity. He says that the GOP offered a plan and amendments that incorporated the Specter/Whitehouse alternative to retroactive immunity as amenable to debate and vote.

Senator Reid says he objects to 60 vote margins (the deal) on those amendments, and that the deal omitted modification of Title I.

Senator McConnell says President Bush will refuse to sign a 30 day or longer extension, and that if the House leaves, faced with this threat, the House is acting irresponsibly. McConnell is not effectively rebutting the suggestion to divorce retroactive immunity from PAA.

Senator Reid asks, "if this law is so good, why don't we just extend it?" He also correctly notes that it is legislatively impossible to pass this bill today, and even if the Senate did, the House still is standing as a risk to timely passage.

He says if there is no agreement to extend the PAA, he'll move on to another subject. McConnell says the Senate will not move off this bipartisan bill that (the SSCI version) President Bush is willing to sign. Senator Reid says the bill is NOT bipartisan, because that conclusion ignores the contentious passage by the Judiciary.

The leaders are done beating each other up. Senator (Mr. shamnesty) Martinez says the blame game is old, and says that the surveillance part of the PAA, the current law, needs to continue. Not sure where he stands on retroactive immunity.

At 10:30 he weighs in, strongly in favor of retroactive immunity, as protecting companies that acted in good faith with presidential orders, and an urgent need to keep secret from the public the extent of snooping that goes on without independent oversight.

10:50: Senator Cornyn debating the non-contentious (for now) part of the PAA, that being the snoop-without-warrant abilities. The contentions sticking point is retroactive immunity. Ahh, now he picks it up. He wants the Senate to act the part of the courts.

10:59: Senator Bond up advocating 60 vote thresholds for contentious amendments, as well as for the bill. This is just a time management issue, at bottom, but his willingness to ask for that is a outright confident clue that the Senate has 60 votes for retroactive immunity, as long as retroactive immunity is bundled with expanding warrantless snooping authority along the lines of the PAA or SSCI version of FISA. The bundling is essential cover, "baffle 'em with BS" sort of cover.

11:05: Senator Dorgan talking about the economic stimulus package, and advocating the money be spent on infrastructure (roads), not on handouts to consumers. The economic stimulus package is going to a contentious fight in the Senate too. A pretty hot start to the second session of the 110th Senate!

11:30: Must be difficulty in obtaining an agreement as to how to proceed with FISA. Morning business extended half an hour, without objection.

11:55: Must be extreme difficulty in negotiating an agreement as to how to proceed to FISA, morning business has been extended to 4:30 p.m. I think the GOP has overplayed it's hand at "a 30 day extension is unacceptable." Stupid stupid tactical and political stance. The Senate would have worked through FISA in a week or two, not pretty, but would have been done. And GOP objection will work to HIGHLIGHT, not bury, the retroactive immunity issue.

13:00: It's looking to me as though, respecting FISA amendment, the Senate will be faced with a "take it or leave it" choice on H.R.5104, a 30 day extension of the Protect America Act. That is, if the House takes it up and passes it. Right now the House is working on H.R.5140, the economic stimulus package, and the PAA extension is still in House Committee, albeit easy enough to get out.

House Democrats will meet in Williamsburg for retreat, from Wednesday through Friday.

House Debate on Legislative Program - January 23, 2008, contains an interesting exchange relating not only to timing and the substance of FISA amendments, but also criticizes the Senate for a habit of forcing the House into "take it or leave it" situations, in general.

14:51: Senator Snowe speaking. She cherry-picked through history (although, not unfairly, I don't think) to reach the conclusion that it's time to modify the snooping provisions specified by federal law that guides presidential action in gathering foreign intelligence information.

14:55: Senator Snowe announces that she's in favor of retroactive immunity, in the model established by the SSCI version of the bill.

15:25: According to a poster (magster) at Firedoglake, the House, Senate and President Bush have agreed to a 15 day extension of the PAA. That means objectors Dodd and Feingold are on board.

16:04: H.R.5104 was amended from 30 days to 15 days. The House passed it on a 2/3rds majority, on a voice vote. No roll call needed.

16:14: Morning business extended another 90 minutes. Paperwork takes some time to make it across the Capitol building.

17:56: Morning business until 6:30. No more roll call votes today.

18:00: Senator Salazar asked to take up and pass S.2556, a 30 day extension, and is met with objection. Either he was unaware of the House-passed H.R.5104 with a 15 day extension, or he's testing the GOP. I think he was unaware. Maybe freelancing for Reid.

20:22: Senator Reid closing up the Senate. Passes a few resolutions ...

S.2571 - to make technical corrections to a pesticide act, was passed.

S.Res.433 - Honoring men and women of the Coast Guard
S.Res.435 - Recognizing "Goals of Catholic Schools" week
S.Res.436 - Designating Feb 4-8 "National School Counseling Week"
S.Res.429 - Honoring men and women of the Coast Guard (again?)
S.Res.431 - Calling for peaceful resolution to electoral crisis in Kenya

20:26: H.R.5104, the 15 day extension to PAA, is passed.

Motion to proceed to H.R.5140, the economic stimulus package, was adopted on unanimous consent [the bill was read the first time], but [when the motion to proceed is adopted] this bill is not to displace the pending action (S.2248, FISA).

20:31: Senate stands adjourned until 10:00 tomorrow, with no definite time set to take up S.2248, and no amendment, debate, time and vote margin agreement having been reached, despite hours of back room negotiation.

All in all, passing a 15 day extension "on the QT" is a good way to quell the appearance of dispute between Congress and the administration. President Bush gets to keep his veto promise, and Congressional acquiescence is performed quietly, and in the Senate, unanimously. There is no news of a showdown between pro and anti-immunity factions in the Senate, and no news of meaningful Congressional signs of resistance to retroactive immunity.

Could Rockefeller persuade 60 Senators to adopt his version of "court review of past surveillance"? Easily, I think. The details in Title II of the SSCI bill are at least slightly esoteric (e.g,. the language includes a statement of the standard of judicial review), which provide great cover for senators. They can claim (although it's misleading) that they are FOR court review, while endorsing legislation that provides for a hollow shell of a review process, and that review being conducted 100% in secret.

January 30

On a sloppy listen, I heard the "motion to proceed to H.R.5140" being adopted. The record shows a different procedural stance, and the bill has so far not been through its second reading. Not important at all, as the motion to proceed won't be met with objection. The contentious stuff is Senate modification of the House-passed package.

Hear Senator Reid close the Senate, January 29, 2008.

1.--Ordered, That the adoption of a motion to proceed to H.R. 5140, an act to provide economic stimulus through recovery rebates to individuals, incentives for business investment, and an increase in conforming and FHA loan limits, not displace any pending measures.


Some action from the right on FISA, a few days behind pressure from the left. On the subject of retroactive immunity, the NRO editorial board weighs in with "Reform, Now"

[O]bjection [to retroactive immunity] is specious. The bill provides protection only for companies that acted on assurances from the administration that the program was lawful. If the companies cannot bank on such assurances, they have no incentive to cooperate in the intelligence collection that is a must if Americans are to be protected. But when the aroma of torts is in the air, Democrats find it difficult to resist their trial-lawyer constituency, who do so much to keep Democratic campaign coffers full.

Hey, I'm convinced, now that "specious" has been introduced. Support for legal penalties to pay taxes is also "specious." If people can't bank on assurances that they'll be taxed fairly, they have no incentive to cooperate in the tax collection that is a must if Americans are to be protected.

In a separate post, KLO notes,

On practical matters, by the way: This official was confident that once the Senate votes to make FISA permanent -- including immunity for the telecoms -- the House will acquiesce.

I concur with that. The Senate will pass the Rockefeller "not immunity" immunity, and the House will too. It's over, but for the show fight.

Text of Senate Report 110-209, expressing Committee finding as to telecom actions in complying with orders, as well as Committee summary of the "alternative remedy" it proposes and justifications for immunity. Just search the page for "Retroactive Immunity," the explanation is 13 short paragraphs, and is in a plain-spoken style.


I harbor the notion that Congress has made some stupendously boneheaded decisions (actually, capitulations - besides being duplicitous, Congress is flaccid) that "seem right" in the heat of battle, but will play out very badly in the long run. Here's an essay at Slate (h/t HowAppealing) that plays on that theme: Let's do away with the legislative fiction of the terrorist alarm clock - Dahlia Lithwick

I disagree with the tenor, e.g,, "Bush slinking away," but my beef is the same. Government action should be transparent, or at the very least, the law should accurately portray the relationship that the government holds against its subjects. That's not assignable to a president, it's primarily at the feet of the legislature, which has the responsibility and power to make the law and serve as a check against an errant president.

Congress is SUPPOSED to be a check and balance in the scheme of things, but historically (not just this Congress) it's been a study in obfuscation, delay, fence straddling, and buck passing.


Another of my frequent hat tips to HowAppealing - a series of article links: Mukasey Offers View on Waterboarding. Almost the same argument as last time around, the labeling gig. Some of the revision to the War Crimes Law are examples of the stupendously boneheaded decisions that Congress has made. Torture is illegal, but not punishable? And "torture" being given a brand new legal definition that draws the line between permissible and impermissible treatment far beyond historic norms.

Senate by Cboldt: Establishing Military Commissions - Sept 28, 2006

I think this bill will bite us in the ass. I think the Republicans engaged in sloppy rhetoric and logic (not that the DEMs did any better), and in some cases, outright misrepresentation (not that the DEMs did any better). There were many many straw men set up and knocked down, many invalid comparisons and parallels, godawful implicit assumptions that "took" the final question as answered (everyone we are talking about is the worst of the worst, therefore I'll talk about something other than how the United States will determine who is the worst of the worst), and in general an absence of serious debate.

Something as important as this, that's been kicked around for 5 years, should not result in a bright-line party-line vote. As for Congress, each side will blame the other for the split being partisan. I have a sense that the GOP just gave the president what he asked for, and the Congress as a whole punted the details to the lawyers and the courts, to be sorted out later. In other words (pick your preferred acronym), "situation normal, all f'd up [SNAFU]", or "f'd up beyond all repair [FUBAR]."

Back to the present, Marty Lederman weighs in, with Torture: "Reasonable People" Can Disagree.

SJC Hearing: Oversight of the U.S. Department of Justice
No member statements are available yet. Unusual on Senator Leahy's part.

Mukasey letter to the Leahy (110 kB pdf file)

---=== 10:06 ===---

One hour of morning business is scheduled. Reid announces that the Committee leaders have worked out an agreement on moving ahead with FISA, but it hasn't been presented to McConnell. He figures about one day to complete the action, and has concurrence with Rockefeller, Bond, Leahy and Specter on the parliamentary details. He assumes there will be a House/Senate conference, and wants to give that sufficient time to work.

Vote planned for Monday, probably Monday night, and also on Tuesday. This timeframe applies to BOTH, FISA and the economic stimulus package.

Senator McConnell says he agreed to the 15 day extension based on Reid's representation that FISA would be handled properly and promptly. He touts the 13-2 SSCI vote as demonstrating overwhelming support for the SSCI/DNI statutory language. Reid does not object this time, as he did yesterday.

Details of the amendment package and timeframes hasn't been presented, but the clear expression of a Monday vote indicates that a cloture motion will be filed on the bill (or substitute amendment, whichever formality they pick) tomorrow, to overcome (my guess, Dodd & Feingold) objection.


11:36: Quorum call has been underway since 10 "something" a.m. Some Senators are venting their spleens against AG Mukasey. To no actionable end, to be sure. Just venting for public consumption. Great acting! Huzzah huzzah!! Encore!

11:42: HR 5140, economic stimulus, is read a second time. It'll be on the calendar tomorrow (not pending, just having a calendar number). Resume quorum call.

11:52: Senator Reid asks for 7 UC requests to have committees meet. Resume quorum call.

12:06: Senator Burr, introducing a Veteran's Mental Health Act. He expects to take 15 minutes. The Senate resumes quorum call at 12:34. FISA sure is "hot" today.

13:57: Senator Carper breaks the quorum call, speaks on the economic stimulus package. The Senate resumes quorum call at 14:13.

14:47: Senator Sanders snuck in while I was looking elsewhere. He too is talking about the economic stimulus package.

15:03: The Senate Finance Committee is working on a mark-up of an economic stimulus bill, and the Senate Judiciary Committee is beating up AG Mukasey. The floor of the Senate is in quorum call.

15:40: Senator Gregg, speaking from the floor of the Senate, about the economic stimulus package.

16:00: Senators Bond, Burr and Warner in a 30 minute colloquy on FISA, although they are speaking as if in morning business. I figure this will be a stageplay version of The "Facts Strike Back" on FISA.


Beldar has an outstanding piece on the subject of judicial nominations and the effect of the Gang-of-14. He chides McCain, but doesn't reject him as a presidential candidate. "McCain, judicial nominations, sleeves, and warts."


16:38: Senator Dorgan, speaking as if in morning business, on the economic stimulus package. He says that it's his understanding this (stimulus package) bill will come to the floor of the Senate tomorrow morning.

18:07: Senator Reid just completed a brief announcement - no roll call votes tonight, we'll see what we can do tomorrow on the stimulus package, but it isn't sure when those votes will be had.

He thought there was an agreement as to handling FISA, a few minutes ago, "but it became unworked." Going to continue to negotiate toward an agreement. McConnell has been told they are working on it, but there are two sides to the negotiation, which is a work in progress. Will see what they can do tomorrow, repeats "no more votes tonight," then return to quorum call.

I'd like to know the details relevant to the failure to obtain a plan to move FISA forward. Right now, neither side is breaking silence on that -- I wish I could wiretap or bug the meeting room.

Timeline speculation? Generally hinges around the filing of a cloture motion. If negotiations keep dragging on, McConnell may file a repeat of the cloture motion he filed last week. He has the independent right to do so -- independent of the negotiators that is. A cloture motion filed tonight would ripen Friday morning.

19:05: It's after 7 p.m, and the Senate is in morning business. Senator Thune rises to urge passing of H.R.2419, "the farm bill," which is hanging out between the House and Senate. Senate conferees yet to be named, so no conference committee can be formed. "There's more than one way to kill a bill."

19:34: Senator Brown closes the Senate for the day.

S.Res.438 - printing illustrations for a Document entitled "Committee on Appropriations - US Senate - 1867 to 2008"

The Senate stands adjourned until 11:00 a.m., no business specified for tomorrow.
Heheheh. Today was a full day on morning business, with no agreement as to how to handle the FISA bill.

January 31

I have a hunch as to the nature of the stalemate on negotiating the parliamentary details pertaining to passing S.2248, the FISA bill.

To analyze the current battle, it's helpful to imagine a hypothetical battle, over any issue. Imagine a small minority of Senators, say 10 to 20, persisting in unreasonable objections. The majority of Senators can easily, albeit with a time expense of a few days, get around those objectors. The majority files a cloture motion (it passes with 80 or more votes), and passes the amendment or bill (it also gets 80 or more votes). As long as the Senate can deal with a 3 day delay -- as long as there is no looming recess -- a cloture delay is a "so what?" event. The vast majority works its will.

In the current FISA delay, the pro-immunity faction wants to arrange 60 vote margins in the back rooms, on the front end of announcing the details of an agreement to proceed; and the anti-immunity faction wants the pro-immunity faction to be forced into expressing and sustaining its objection to simple majority votes, from the Senate floor.

On this bill, a public expression of objection to proceeding under normal Senate rules (that is, insisting on use of the 60 vote "expediency" without cloture) has two effects. First, it will drive home the fact that the current extended delay (as opposed to the normal 3 day delay of cloture) is clearly assignable to the pro-immunity faction. Who's the cause of extended delay? Of "putting the program at risk?" Not the anti-immunity faction, they are and have been ready to go. While they insist on their right to object, their objection can easily be overcome with cloture. If the majority had, last week, allowed amendments and filed cloture motions as needed (to get around the anti-immunity minority and prevent passing of poison pills), the bill would be passing tomorrow.

Second, insisting on 60 vote margins on the front end will signal weakness in conviction, that the pro-immunity faction is not confident that a simple majority of senators will refrain from imposing "unacceptable" amendments. If the SSCI bill is supported at the 13-2 ratio that the pro-immunity faction touts as having -- the "overwhelming bipartisan support" that it asserts augurs for quick votes and passage -- then the normal parliamentary process of cloture provides a tool to prevent unacceptable amendments with "close" votes from poisoning the final bill, and poses absolutely no threat to timely passage of the SSCI bill.

The key to managing public perception over who's to blame for the delay is to differentiate the ordinary and predictable cloture delay that a results from the objection of a recalcitrant minority, from an indeterminate delay created by the majority, made for the purpose of political theater.

Morning speeches by Reid and McConnell will feed into President Bush's scheduled speech in Las Vegas. The meme that delay is being caused by the anti-immunity faction will probably pass as truth for a majority of the public; but the record is very clear that the current source of objection to proceed comes from the pro-immunity side. If passing this bill is important, the pro-immunity side should proceed under "regular order," including the annoyance of cloture. They will get the legislation they are advocating.

They shouldn't even bother to object to Feingold's amendment, stripping immunity altogether. Feingold's amendment won't get majority support; given the SSCI version, the Feinstein option, and the Specter/Whitehouse option -- no way a majority of Senators will say "strip immunity out altogether." And likely no way a majority of senators will coalesce around Feinstein or Specter/Whitehouse, given the threat of presidential veto. Just get on with the debate and vote. What's the fear?

On the other hand, a number of poison amendments to the Title I provisions may have a chance of passing on a majority vote. The pro-immunity side can agree to take them up for debate, then obstruct passage by objecting to vote on them, and Reid can file cloture motions on those amendments with the ostensible "neutral-referee" justification of moving the debate to a timely conclusion.

Setting fantasy aside, I'm seeing two general paths. One being an announcement that negotiations have failed, to which McConnell will file a cloture motion and there will be a repeat of the "take it or leave it" vote of early this week. The other being an agreement to proceed with 60 vote margins having been negotiated off the Senate floor. I see "regular order" (as I advocated above) as remotely likely. There will be ONE cloture vote, that being on final passage. That obscures the contentious from non-contentious, and gives every senator political cover.


A long, but good piece on the Heller (2nd amendment) case, at Concurring Opinions. "The Three Steps in D.C. v. Heller" by Mike O'Shea. He covers the merits brief of the petitioner, the city of Washington, D.C. A teaser ...

The critical inference. Issue (3) still remains: for what purposes are individuals constitutionally entitled to keep arms? Heller must convince the Supreme Court to draw the critical inference: that the constitutionally protected interests encompassed by the Second Amendment individual right to keep arms include keeping them for personal self-defense.

---=== 11:03 ===---

Senator Reid opens with noting the absence of a quorum. Waiting for Senator McConnell, perhaps.

11:07: Senator Reid puts the Senate into morning business. Two issues before the Senate. FISA, where there is nothing to sign off on yet. Still very close to a deal. He thinks legislative action on this bill can be completed in one 12 hour day.

The other item is the economic stimulus package.

Without disclosing a schedule, but noting that he "needs" Clinton, Obama, and (it's up to him) McCain in the Senate on Monday and Tuesday next week, for votes. "Need" in scare quotes, he's only saying that there will be votes on FISA and/or the economic stimulus package. The Senators can figure out if they need to be there to help their presidential-political campaigns.

11:24: Senator McConnell spoke first on economic stimulus, giving advantage to the Pelosi/WH negotiated plan, and chiding the Senate for daring to amend the package -- "beginning to look like Christmas over here." He says the way to get this done is "speed over spending," pass the House bill unamended. Bringing it to the floor will slow it down. Well, Mitch, object to amendments.

No comments on FISA. At 11:28, he moves on to memorialize a Kentucky soldier, Maj. Michael L. Mundell, killed in Iraq.

11:41: Senator Baucus notes McConnell's urging to pass the House bill, unamended, and proceeds to argue in favor of his amendment that broadens the issuance of rebate checks. And so the debate is on ... two subjects simultaneously. Who knows which bill, H.R.5140 (economic stimulus) or S.2248 (FISA) will come up first, or exactly when. Both are contentious as a matter of amendment, and neither seems to have a broad agreement to "pass unamended."

13:24: Action so far today? Quorum call and morning business speeches relating to economic stimulus, more quorum call than speeches. TPM Muckraker, at "Surveillance Bill Discussions Hinging on Retroactive Immunity," claims a source that has seen a letter describing the FISA procedural negotiations. Senator McConnell is objecting to bringing up, AT ALL, an amendment to strip the SSCI immunity provision (fondly referred to as "Title II") from the bill. He's not holding out for a 60 vote margin in advance - he's refusing to allow the Senate to debate and vote on it, period. Weird. I'd think that bringing it up and defeating it straight out would be a more certain way to clear the issue.


15:00: Senator Grassley is unhappy that the Senate leadership let the Finance Committee work on the economic stimulus bill, in light of their preference to have the Senate rubber-stamp the House bill.

---=== 17:25 ===---

Senator Reid. Chit chat to start with. Segued into business. No roll call votes today, he's disappointed there has been only one this week, but it's nobody's fault because there are two difficult projects on the desk. He thinks FISA is worked out from the point of view of the DEMs. He thinks the GOP will "hotline" a consent agreement to the GOP Senators so the FISA bill can be handled next week.

He talks too about the economic stimulus package, and expresses his preference to go with "the Senate version," whatever that ends up being, on account of extending relief to retirees, unemployed, providing foreclosure relief. He's set a deadline of February 15 to have the economic stimulus package passed, and expects it will be done a week sooner than that, i.e., by next week. Back into quorum call at 17:34.

Hear Senator Reid chit chat, describe FISA consent negotiation and hopeful as to a quick conclusion on it and economic stimulus.

17:36: Reid moves to proceed to H.R.5140, and files a cloture motion on the motion to proceed. Cloture vote scheduled for 5:30 p.m. Monday. He withdraws the motion to proceed, since it's now covered by a cloture motion. [Again, agreement to proceed to the stimulus package will not displace FISA, if FISA is underway.]

Senator Reid expresses gratitude to Senator McConnell for his patience on FISA. He notes two days of hard fought negotiation, but that all sides deserve to have their say in it, and heavy emotions on all sides of the debate. There are divisions in the DEM caucus on the issue. The WH will be heavily involved in drafting amendments because there is no sense in passing something that has veto written all over it.

Senator McConnell says he doesn't fault Reid, but this has been an exasperating week. He'd hoped that FISA and stimulus would be quickly worked out, stimulus passing by a stunning majority in the House - the 13-2 vote on FISA on a bill the president said he would sign - and neither of them passed. He's hoping for a better week next week. Quorum call at 17:40.

Hear Senator Reid file the motion to proceed to the consideration of H.R.5140 - economic stimulus, and the exchange relating to FISA and economic stimulus schedule.

---=== 20:12 ===---

Ahh, the detail plan for the FISA bill (a unanimous consent agreement), except for the text.

All pending amendments be withdrawn except the substitute. Then a lengthy agreement naming amendments, debate times, and passage thresholds. I may transcribe it, or may wait for it to appear in the legislative calendar, about 3 hours from now. There is cloture motion on the bill as amended, with that being the only cloture motion. The Feingold amendment (stripping immunity) is one of the amendments to be debated and voted on ... audio to be posted shortly.

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

Hear Senator Reid recite the unanimous consent agreement for debate on FISA, miscellaneous legislative action, and adjourning the Senate until 2:00 p.m. Monday.

---=== 22:33 ===---

Link to amendments and VOTE RESULTS through final passage
(Up to date - Below is NOT up to date)

Summary of the UC Agreement for Passing FISA

  • All pending amendments set aside, except 3911, the SSCI bill
  1. 4 amendments pass on unanimous consent agreement (no votes)
    • Feingold 3909 (FISC reports legal opinions re: TSP to Congress) as modified
    • Whitehouse 3932 (acquisition continues during government appeal) as modified
    • Kennedy 3960 (relating to domestic-domestic acquisition) as modified
    • Bond 3945 (eliminates a 7 day deadline) w/o modification
  2. 8 amendments pass on majority vote, motions to table are in order
    • Bond 3941 (FISC standard of review) as modified, 20 minutes
    • Bond 3938 (new category of target, WMD proliferator) as modified, 20 minutes
    • Feingold 3907 (strike Title II), 2 hours
    • Specter/Whitehouse 3927 (substitute government for telecoms), 2 hours
    • Feingold 3913 (insert "significant purpose"), 40 minutes
    • Feingold 3912 (insert "significant purpose"), 40 minutes
    • Feingold 3915 (FISC has power to remedy deficient certifications), 40 minutes
    • Feingold/Webb regarding sequestration, 90 minutes
  3. 3 4 amendments require 60 votes to pass, to be withdrawn otherwise [Written UC is different from Reid's oral delivery]
    • Feinstein 3919 (remove pending civil litigation to FISC), 2 hours
    • Cardin 3930 (4 year sunset), 60 minutes
    • Whitehouse 3920 (empower FISC to order changes to acquisition, retention or dissemination), 60 minutes
    • Feinstein 3910 (FISA is exclusive means), no time limit on debate 90 minutes [Written UC is different from Reid's oral delivery]
  4. amendment passes on majority vote [Written UC is different from Reid's oral delivery]
    • Feinstein 3910
  • Managers amendment (usually agreed on voice vote)
  • Cloture on bill (cloture motion hasn't yet been filed)
  • Pass bill then place it in the HR 3773 vehicle and send it back to the House

Same list of amendments, with a little more detail and links to parts of the Congressional Record that contain the text of the amendments. CAUTION: This is a draft, the summaries of subject material were prepared in haste, not carefully. I'm looking for a PDF of S.Amdt3911 for pagination and line numbering.

  1. 4 Amendments Agreed to on Unanimous Consent
    • Feingold 3909 (as modified) is FISC reporting its legal decisions re: TSP, etc. to Congress. The "as modified" language not being known, it's not possible to tell (yet) if the reports include redacted pleadings. "As modified" generally indicates some degree of concession.
    • Whitehouse 3932 (as modified) describes the continuance of acquisition pending appeal of an averse ruling from the FISC
    • Kennedy 3960 (as modified) specifies that targeting procedures must preclude obtaining domestic communications; that FISC must review targeting; similarly (domestic-domestic) revises minimization
    • Bond 3945 w/o modification, eliminates a 7 day deadline (On page 15, beginning on line 10, strike "not later than 7 days after the issuance of such decision")
  2. 8 Amendments that pass or are tabled on majority votes
    • Bond 3941 sets out the FISC standard of review and time limits for telecom objections to acquisition directives (On page 13, between lines 2 and 3 -- assignment of a petition filed under subparagraph (A))
    • Bond 3938 creates new categories of target, "engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor" and defines WMD [interesting read]
    • Feingold 3907 is "Strike Title II"
    • Specter/Whitehouse 3927 substitutes the government for telecoms in civil suits
    • Feingold 3913 inserts "significant purpose" at four appropriate locations.
      • On page 6, line 6
      • On page 7, line 7
      • On page 9, between lines 9 and 10
      • On page 17, line 2
    • Feingold 3912 inserts "significant purpose" at one location (page 10 between lines 5 and 6)
    • Feingold 3915 empowers the FISC to order the government to either correct deficiencies or cease acquisition, if a subsection (f) certification is deficient
    • Feingold/Webb regarding sequestration [my guess is this sets up a human firewall to perform the minimization function] [The guess is in error. Sequestration prohibits the use of evidence obtained in searches, if the searches were not performed in accordance with the statute]
  3. 3 4 Amendments that require 60 votes to pass [Written UC is different from Reid's oral delivery]
    • Feinstein 3919 removes the pending civil litigation pertaining to the TSP to the FISC and defines the standard of review leading to dismissal
    • Cardin 3930 is an approximate 4 year sunset for the procedure to obtain new orders (Dec 31, 2011)
    • Whitehouse 3920 empowers the FISC to conduct compliance reviews as to performance under subsections (k)(1), (k)(2), and (k)(3) [I'm guessing these define minimization] relating to acquisition, retention, or dissemination; and authorizes remedies to enforce compliance
    • Feinstein 3910 is an attempt to match the president's Article II power with "exclusive means" statutory language
  4. Amendment that passes on a majority vote
    • Feinstein 3910 [Written UC is different from Reid's oral delivery]
This is what the Congressional Record shows being uttered from the floor. The UC agreement printed on the legislative calendar has precedence over the words of the Congressional Record.

REID: ... provided further, that the next 3 amendments listed be subject to a 60-affirmative vote threshold, and that if it does not achieve that threshold, then the amendment be withdrawn: Feinstein amendment No. 3919, 2 hours; Cardin amendment No. 3930, 60 minutes; Whitehouse amendment No. 3920, 60 minutes; finally, that the Feinstein amendment No. 3910 also be in order, without any debate limitation ...

That link also contains the text of modified Feingold 3909 (FISC reports to Congress); modified Whitehouse 3932 (procedure for government appeal from adverse FISC order); and modified Bond 3945 (to strike the time limitation for certain appeals).


H/T HowAppealing and SCOTUSblog, The DC Circuit has rejected the administration's plea for rehearing en banc, in the Bismullah case.

Link to plain-text of the DC Circuit Judge's Order and Opinion. This is a must read. That this decision was reached on a close plurality shouldn't be read as being a close decision on the merits, but rather as to whether or not the DC Circuit felt it has properly and adequately explored the issue during the appeal heard by a three judge panel.

[Keeping subject references in proximity]

NYT: "Guantánamo Decision Rebuffs Government" - WILLIAM GLABERSON (Feb 2)

Lawyers on both sides view the [Paracha/Bismullah] case in the appeals court as second in importance to a separate detainee case [Boumediene, on the separation between military and civilian courts via habeas] that the Supreme Court is considering. ...

The appeals court was obviously fragmented over how to proceed, with five separate opinions, including three dissents. A dissenter, Judge A. Raymond Randolph, wrote that under the order "vast reams of classified information" would be turned over to detainees' lawyers, risking "serious security breaches for no good reason."

I emphasize that the opinion itself is a must read. NYT cherry picks statements, often out of context. Of course there is "good reason" to render accurate justice. While many, probably most of the detainees remaining are bad guys, its possible that some aren't what the government represents them as. If "the system" is to obtain a reputation for impartiality, the evidence has to be reviewable by an agent who is independent from the jailer. If the court is denied the exercise of independent review, it becomes a rubber-stamp and would be better off refusing to participate.

Here's more on the risk of "serious security breaches for no good reason," for readers who don't have time or inclination to read the legal decisions. CNN: "Court hands White House another setback over detainees" - Bill Mears (Feb 2)

the full appeals court did agree that only the judges themselves could view top secret declarations from intelligence officials. Neither the defense lawyers nor the judges' staff will be allowed access.


Back to the FISA subject, I'm wondering if the Senate can amend a House Bill and return it to the House without requesting a conference. I don't have examples at my fingertips, but my sense is that this sort of action is more common than having a conference. One body or the other asks for the conference, but more often their differences can be efficiently negotiated without a conference. I'm not clear on the details of protocol and formality that control the initiation of a conference.

Aside from the FISA conference question at hand, I do know that some bills stall and/or die for want of forming a conference - see, for example, H.R.2419 - "The Farm Bill." That is currently held up in the Senate, because the Senate, while insisting on its amendment and intending to request a conference with the House, has yet to name conferees and communicate its insistence and request to the House.

Long story short, at this point I don't have citations to provide a clear handle on the protocol for initiating a conference; but I predict there will be no conference with the House. I think this on the grounds that I don't foresee the House passing deal-breaker amendments (i.e., President Bush vows to veto); and that the UC agreement does not mention insisting on amendment, or requesting a conference.

Search Congressional Record (2007) for:

"insist on its amendment" ... Total Hits: 31
"request a conference with" ... Total Hits: 42
"insist on its amendment" AND "request a conference with" - Senate ... Total Hits: 26
"insist on its amendment" AND "request a conference with" - House ... Total Hits: 3

My preliminary opinion is that the omission from the UC agreement, of Senate insistence its amendment and requesting a conference with the House is, at least as a matter of form, highly significant. Others can hit the searches linked above and scan the record for themselves.

See also, Riddicks Rules: Amendments Between Houses [Similar material is in text at 110th Congress House Rules Manual -- House Document No. 109-157. Rule XXII - House and Senate Relations (current); Jefferson's Manual Sec. XLV - Amendments Between Houses (historical)], starting on page 137 (page 12 of the 19 page PDF file), "The House which disagrees to the amendments of the other House to a bill does not always ask for a conference, but may wait for the other House to insist on its amendments and ask for a conference." Another statement on that page, "The Senate may disagree to the amendments of the House without asking for a conference." This will be exactly the posture of S.2248 / H.R.3773, early next week.

See also, on the following page (of Riddicks), "When the Senate agrees to amendments of the House to amendments of the Senate to a House bill and no other amendments are left for disposition, that concludes legislative action on the bill, but if a single amendment in disagreement remains undisposed of, the bill would not be finally passed." That describes the process in case the House makes "acceptable" amendments.

There is plenty more in Riddicks. Just the same, the short version of handling the FISA bill is that the Senate hasn't asked for a conference.

I have to do a bit of research to discover if a conference request is something that is done on a motion, whether it is debatable (I think it is, as simple objection holds up the naming of conferees), and other matters that are purely internal to the Senate.

House and Senate Rules - Link for those who have other research projects in mind.

[Saturday Morning] Insistence on its amendment and requesting a conference is a debatable motion.

At this point of the process on the FISA bill, a conference request is premature because the House has yet to weigh in on the Senate's proposed legislation. While the two bills are different, the formality of disagreement is presently absent. See Riddicks - Conferences and Conference Reports, see in particular pp 467-8, which describe the interaction between both chambers. Looking ahead, neither chamber has an obligation to agree to a request for a conference, if one is made.

Precedence of motions relating to matters passing between the two chambers is described in Riddicks Rules: Amendments Between Houses.


On a totally unrelated parliamentary subject, recall all my probing of the survival of S.2248's pending status as the Senate went from the 1st to 2nd session of the 110th Congress. I should have just read the rules. Rule XVIII - Business continued from session to session. Duh.


Blogger darclay said...

Well you were pretty much on the mark.
Did you not the absence of Liddy Dole? After all the calls she probably got over the weekend , guess she thought a no show was better than pissing off the electorate more than she already has in the OLF mess.
Thanks for the time you and bmaz among others to explain law, etc to those of us that love it but know very little about it. We try your patience I'm sure.

1/28/2008 8:38 PM  
Blogger cboldt said...

Thanks for the pat on the back. I don't much notice Senator Dole in general. Her pet projects don't seem to intersect my interests. But either taking opposing positions at the same time (via weasel word), or not taking a position, these are essential skills for any politician. It's the public's error and fault for lack of perception, otherwise these clowns would be putting on better performances, i.e., we'd probably have better and different clowns.

1/29/2008 5:01 AM  
OpenID darclay said...

But seriously, in those statutory causes of action, one can see exactly why the administration wants the cases out of court. Even Senator Bond said directly that the snooping was done under color of law, and the administration admits (other than the utterly ridiculous AUMF argument) that the surveillance was not authorized by statute. If the facts come out in court, a conclusion that there was a violation of 50 USC 1809(1) is inescapable.

Well if I read this correctly then the Admin. is off the hook so to speak unless, unless they have used information gathered from surveillance. If that be the case then what info. might they have gotten and used wiretap of Senators or Reps. maybe...

1/29/2008 1:49 PM  
Blogger darclay said...

But seriously, in those statutory causes of action, one can see exactly why the administration wants the cases out of court. Even Senator Bond said directly that the snooping was done under color of law, and the administration admits (other than the utterly ridiculous AUMF argument) that the surveillance was not authorized by statute. If the facts come out in court, a conclusion that there was a violation of 50 USC 1809(1) is inescapable.

Well if I read this correctly then the Admin. is off the hook so to speak unless, unless they have used information gathered from surveillance. If that be the case then what info. might they have gotten and used wiretap of Senators or Reps. maybe...

1/29/2008 1:54 PM  
Blogger cboldt said...

Off the hook as a matter of civil penalty, and because it won't prosecute itself or its agents, off the hook for the 1809(1) violation, but seriously on the hook (to the extent people object to dishonesty, compared with their faith in the government) for telling the public the TSP was "legal," "we don't need a change in the law," etc.
I don' think the public's attention span is long enough to catch the radical shift in story -- and even if it was, bout half, maybe way more than half, tolerate dishonesty in the name of protection from boogie-men.

1/29/2008 4:59 PM  
Blogger darclay said...

story -- and even if it was, bout half, maybe way more than half, tolerate dishonesty in the name of protection from boogie-men.

Unless its about sex, then katie bar the door. It is proven that you can rob this country blind, lie, cheat (which Bush and Cheney, my opinion, have done) and no one give a crap.

1/29/2008 8:07 PM  

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