Pro Forma Wrapup

The excitement of a series of pro forma sessions is about to end. The Senate is scheduled to resume its usual practice of interminable quorum calls, back-room negotiation and script writing for floor action.

What's up? Officially, S. 1200 - Indian Health Care Improvement Act Amendments of 2007. Unofficially, and my speculation for action ...

• Various and sundry economy meddling (the economy being the big news of the moment)
• FISA amendments - S.2248 vs House-passed H.R.3773
• Conference report on H.R.2419 - "The Farm Bill"
• 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 Senate is scheduled to convene today at 10:00 a.m., and will mark the end of "legislative day January 3, 2008" when it adjourns this afternoon.

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4th Circuit Nominee Withdraws Name - Washington Post

Circuit Court Summary updated accordingly.

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A mass detainee release is being contemplated, in Iraq.

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Attorneys probe deepens - By Manu Raju (The Hill)

Congressional aides expect the status of the inquiries to arise Jan. 30, when Michael Mukasey testifies for the first time as attorney general before the Senate Judiciary Committee.

Commenting on the article, I think the internal reports that it mentions will be read as "scathing" by those who want to, and as exculpatory by the administration. There will not be any referral of criminal charges, not for Hatch Act and not for any other law. The worst case will be Contempt of Congress citations issued for failure to testify. "Stonewalling works."

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On the Solicitor General's brief in the Heller case (second amendment), WSJ: Misfire at Justice

The SG's blundering brief only increases the odds of another inscrutable High Court split decision, with Justice Kennedy standing alone in the middle with his balancing scales, and the lower courts left free to disregard or reinterpret what could have been a landmark case. Is anybody still awake at the White House?

10:28

The C-SPAN2 announcer reminded me that we'll have a new Senator today, Senator Wicker taking Senator Lott's place. Vice President Cheney brought the Senate to order, and swore in the Senator-designate, with the oath being completed at 10:03. Applause. VP Cheney leaves, and Senator Tester assumes the duties of the chair.

Senator Reid's summary of upcoming action: S.1200 for a couple of days. Republicans will be at a retreat tomorrow, so tomorrow's action will be on amendments offered by Democrats. Senator Reid ruminates on his personal life, and on wildlife that visits his homestead in Searchlight. Then he complains about obstructionism. Same stuff, new year.

• FISA - Senator Reid is seeking a one-month extension of the Protect America Act. There was Republican objection to an extension, last year.
• Defense authorization (passing H.R.4986, the replacement that followed President Bush's veto)
• Product safety (e.g., toy safety) H.R.4040
• Patent reform
• Energy legislation
• Lieberman/Warner global warming cap-and-trade bill (S.2191 - America's Climate Security Act)

16:28

A short piece on the subject of cap-and-trade, by Iain Murray at NRO ... "Energy Disaster Looming." Hmmm ... "a cap and trade promise into the Bush campaign's August 2000 energy plan"? Uh oh? Or is this a position that President Bush reversed?

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Executive Order: Establishing the President's Advisory Council on Financial Literacy ... "to encourage financial literacy among the American people."

And here I thought being financially secure was to be adequate encouragement for being financially literate. Silly me. Now we'll have the government helping us (the public) obtain adequate understanding of "spend within your means." I take the formation of this board as yet another sign of a dumbed-down populace.

17:20: Senator Dorgan announced that he and Senator Murkowski have perfected a substitute amendment for the Indian Health Care bill; and then he announced that additional amendments are pending.

The vote at 5:30 will be on H.R.4986 - the replacement defense authorization bill. Easy passage.

17:56: H.R.4986 - National Defense Authorization Act for Fiscal Year 2008, was PASSED on a 91-3 vote.
NAY votes: Byrd, Feingold, Sanders

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Senator Reid asks for unanimous consent to pass S.2541 - a one month extension of Protect America Act. Senator McConnell objects, noting 1) there is plenty of time in the month and 2) that a conference with the House may not be necessary (my comment, notwithstanding that the House passed a competing measure).

No votes tomorrow, unless they occur after 6:00 p.m. Senator Reid says FISA must pass this week (by COB Thursday), in order to give the House time to debate and handle. The Senate will, as stated last session, begin with the Intelligence Committee version of the bill. He suggests that objection to amendments be met with motions to table instead of with "silent filibuster" or a requirement to obtain 60 votes. Now we will see whether or not Senator Dodd's promise to hold this bill up has any teeth.

Senator Reid asked unanimous consent to pass H.R.1255 - Presidential Records Act Amendments of 2007, and that too was met with Republican objection, voiced by Senator Sessions.

Senator Reid, "the sickest, most dependent people ... are the American Indians." Way to go Senator! Way to encourage self-sufficiency and self-determination. Senator Dorgan passionately advocates for more time to get Indian Health Care completed in proper form, notwithstanding that FISA has a "looming deadline." I won't be surprised if that FISA extension is passed, as the Senate fails to complete action on the substantive bill by the close of business on Thursday.

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January 23

A quiet day in store for the Senate, starting at noon, recessing from 12:30 to 2:15, and then resumption of the Indian Health Care bill. Regarding this bill, the WH policy statement indicates will veto, if provisions relating to wages are passed by Congress.

12:05: A slightly modified timetable for completing action on the FISA bill, Senator Reid says it will be before the Senate all day Thursday and Friday, and Saturday if need be. No mention of any intention to stall the bill, an effort that Senator Dodd might renew.

H.R.4040 - Consumer Product Safety Modernization Act, was put on the legislative calendar.

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15:25: President Bush has, again, for at least the fourth time, renominated Steven G. Bradbury to be Assistant AG. He was also nominated on June 23, 2005, November 14, 2006, and January 9, 2007, with the Senate returning each of those nominations. The most recent return was December 2007, and the Senate conducted pro forma sessions to prevent Bradbury being recess appointed.

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16:40: The Indian Health Care bill is going to be temporarily set aside, later tonight, to make room for handling the FISA bill.

18:25: Senator Reid asks for "regular order," which results in making the FISA bill The pending bill is "as amended" by an amendment from the Judiciary Committee, but the text of that amendment is not yet available. Senator Reid expects there will be a motion to table this amendment. Note that motions to table are not debatable, and therefore are not amenable to cloture.

That's an interesting parliamentary tactic -- to propose a doomed measure and kill it via tabling. It has the effect of limiting debate on that particular issue, and will stifle Senator Dodd's plan to stall passage of the telecom amnesty provisions. He'll still be able to object to voting on the final bill, etc., of course.

No more votes tonight. The rest of the week will be FISA week.

Senator Cardin supports the Leahy substitute amendment - this may be the bill as passed by the Judiciary Committee. If so, it does not have the telecom amnesty, and it has various FISA definitions and procedures that are objectionable to the administration. And, if this is the bill as passed by Judiciary, the text was published under a different bill number late last year. See text of S.2440 and S.2441, where S.2440 is the Judiciary version.

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January 24

The unanimous consent agreement for handling S.2248 has debate beginning immediately upon opening of the Senate at 9:30 this morning. The "morning hour" is dispensed with.

Recent action includes the filing, Monday, of Senate Report 110-258, which represents the position of the Judiciary Committee. Do read Minority Views, which is brief, and it is an accurate predictor of what will be said in floor debate. Other minority views are in the full report.

X. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

In the opinion of the Committee, it is necessary to dispense with the requirements of paragraph 12 of rule XXVI of the Standing Rules of the Senate in order to expedite the business of the Senate.

As of the close of business on January 23rd, ten amendments have been filed. Six of the ten were filed last December, four were filed yesterday.

• Kennedy S.Amdt.3901
• Kyl S.Amdt.3902
• Kyl S.Amdt.3903
• Specter/Whitehouse S.Amdt.3905 - Substitution of US government for telecoms as party-defendant in pending litigation

Leahy S.Amdt.3862 (link to text, including text of all six amendments filed on December 17, 2007) is not in the nature of a substitute, and it is the only "Leahy" amendment in the ten amendments referenced in the online version of the Congressional Record. Point being that I haven't found the text of a "substitute amendment," that is filed as such, rather than as an alternative bill number. I maintain speculation that the text of S.2440 is what is pending, now in the form of a substitute amendment.

I figure Senator Reid will allow most of the day for debate on the substitute amendment, and that a motion to table the substitute amendment (non-debatable, and cloture does NOT play on a motion to table) will be offered either late today or early tomorrow. This is a coarse-grained approach to amendment, and is meant for "show," not for substantive effect. What makes the approach coarse-grained is that the substitute (Judiciary Committee) is offered on a take it or leave it basis, without IT being amenable to being tweaked with finer grained, point-by-point amendment.

Mr. REID... We hope tomorrow to have a couple hours of debate, and then it is my understanding there could be and likely will be a motion to table this amendment.

A slight modification to that view (my prediction) is possible, and likely. Other unpopular amendments can be debated as amending the substitute amendment, as long as they go down to defeat. For example, Specter's suggestion to substitute the government as defendant in the telecom cases can be brought up, debated, and rejected. It doesn't matter if that happens in the context of amending the Judiciary Committee version, or in the context of amending the Intelligence Committee version.

Another artifact of using a motion to table is that it short circuits the use/abuse of objection and cloture to create delay. Senator Dodd's intention to delay this bill can come in one of two forms. He can hold the floor to prevent introduction of a motion to table, or he can "object" to proceeding on some other procedure such as voting to pass any other amendment, and/or voting to pass the bill.

I think the ultimate outcome will be passage of the Intelligence Committee version of S.2248. The House is free to take up S.2248 for debate, and simply set-aside its independent legislation on the subject, H.R.3773. If passing the Intelligence Committee version of S.2248 through both the House and Senate can't be done before February 1st, then we'll see an extension of the Protect America Act.

Administration "must haves" ...

• redefinition of "electronic surveillance" so that acquiring international communications is not electronic surveillance (this has wide ranging effect on other existing privacy statutes)
• absence of judicial review of communications acquisition orders asserted toward communication carriers
• retroactive immunity/amnesty for enforcement of existing communications privacy law

[Update at 09:00] The text of the substitute amendment is printed in the January 23 Congressional Record, starting at page S185. This is the second, not the first recitation of "the bill" appearing in pages S179-S184 of the Record.

Tangentially related, see Senator Kennedy's remarks relating to a proposed State Secrets Protection Act (S.2533), introduced on Tuesday. This bill would create a civil-court parallel with CIPA, the Classified Information Protection Act that applies in criminal cases. In criminal cases, CIPA provides the defendant with means to use classified information to defend against charges of criminal action. I'll be very surprised if a bill providing similar rights for civil damages claimants ever gets a hearing on the floor of the Senate.

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The contour of the government's income redistribution scheme to stimulate the economy is coming into view. Deal for Economic Rescue Package Closer - Andrew Taylor (AP)

• rebates bribes of at least $300 for each person earning a paycheck, including low-income earners who make too little to pay income taxes. Families with children would receive an additional $300 per child
• tax breaks for businesses [capital investment incentive, more generous expense deductions, and non-profitable businesses obtaining a right to recover taxes previously owed and paid], but less than $70 billion total

Items discussed, but rejected during negotiations ...

• expanding unemployment payments (increasing time duration of unemployment handout)
• more money for food stamps

According to the article, and tangentially related to the "quick, one time" fix sought under the rubric of economic stimulus, both parties are working on housing-loan measures. In particular, making it easier to obtain a government (taxpayer) guaranteed low interest loan; and broadening the base of such guarantees from the current ceiling of $417,000 loans, to $700,000 loans for selected geographic regions.

09:35

Senator Reid hopes to have a time agreement by about noon, on the duration of debate of the Judiciary substitute amendment, and anticipates numerous votes on amendments today. He certainly expects a vote on the pending (Judiciary) substitute amendment sometime today. He indicates that objection to amendments must come in the form of "old fashioned filibuster" instead of calling for a 60 vote margin. He's full of beans on that - Senate rules provide that withholding consent to vote is sufficient action to force the use of cloture, and cloture involves a 60 vote margin.

But, again, for emphasis, a motion to table has priority over an objection to vote. A motion to table undercuts the use of objection to force a cloture motion and supermajority margin. Senator Reid will prevent delay and supermajority votes on at least some amendments (but he can't prevent delay or supermajority margin on passage of the bill or any amendment) by the use of motions to table.

10:30: Listening to Senator Bond, I find his arguments for retroactive amnesty to be pathetic. A telecom can always be compelled to cooperate with the law, so future cooperation is not at any risk, except to the extent the government intends to undertake privacy invasions that are not permitted by law. And disclosing the fact that certain communications were acquired does not disclose a method. He argues that Court interpretation (FISC) of past law impinged on the ability of snoopers, and therefore the Court was wrong, and Congress should not defer interpretation of privacy law to the Court. Piffle. Let's get rid of all the courts then.

And on the subject of amnesty, he says the proposed bill doesn't immunize the government, it immunizes private actors. Then he says it's ludicrous to substitute the government for the private actors.

I'd prefer the Senators to just come out and say that it's unreasonable to expect privacy in communication - instead of saying that privacy is being respected and protected.

11:11: Senator Nelson of Florida says he will will vote to pass a bill that includes retrospective immunity/amnesty, and holds out negotiation with the House as a firewall to prevent legislative granting of immunity from suit based on currently existing statute.

Senator Rockefeller indicates a 2:00 p.m. vote on Leahy's substitute amendment. He did not say whether this would be a vote on passage, or a vote to table.

11:20: Senator Hutchison is misleading regarding the ability of the telecoms to get out of their civil suits. First, she says they have evidence that their snooping was within the law, which would get them off the hook (they don't have that kind of evidence, the TSP was warrantless and OUTSIDE of statutory permission); then she implies that they will therefore lose the case, for want of being able to present that evidence. But in fact, the telecoms WIN, when the government asserts state secret.

The argument relating to retroactive amnesty is as between the administration's assertion of state secret (which surely gets the telecoms out of court, free), and the legislature's willingness to reverse its past prohibitions on invading privacy without cooperation between government snoopers and the judicial branch of government.

My money says that the Congress will undermine the credibility of the rule of law in the area of personal privacy. Congress is, in a word, untrustworthy.

Senator Brownback is misleading on details, saying that a judicial review for "abuse of discretion" provides a risk of loss to the telecoms, i.e., that the so-called "amnesty/immunity" isn't a sure thing in court. His line, "I want to see citizens' (privacy) protected as well," is pure and utter pap for rubes.

Senator Durbin is also wrong, on history. When the TSP was first outed by the NYT, the administration's reaction was not to seek a law. It was to say that it didn't need a law. Quite a major reversal there, from "no new law required" (2006), to "new law URGENTLY required" (2007). The reversal came on the heels of the FISC rejection of some ongoing surveillance program, one that the administration misrepresented as being a program designed to intercept foreign-to-foreign communications. But what program had been recently put before the FISC? Oh yeah, "quickly monitor terrorist communications between someone overseas and someone in America." (President's Radio Address - Sept 16, 2006)

12:05: Senator Specter will not support Leahy's substitute, and will vote for retroactive immunity/amnesty, even though he thinks it is a breach of balance of powers as embodied in the US Constitution. He thinks warrantless snooping involving Americans should be reviewed by more than one branch of government. Give it up Arlen, that is soooo 18th century.

12:15: Senator Dodd is up. Note that he did not object to voting at 2:00 p.m.

13:58: Ruminating on the upcoming vote, my prediction as to the margin of rejection is a 51-43 vote if it's a vote to table, or 43-51 if it's a vote to adopt. The baseline for further debate will then become the Intelligence Committee version of the bill. At shortly after 2:00 p.m., Senator Leahy requested the yeas and nays on the amendment, to which there was sufficient second. At 14:03 Senator Bond moved to table the amendment, with yeas and nays. The vote is on the motion to table.

14:28: Leahy substitute amendment (starting at page S185) to S.2248, was TABLED on a 60-36 vote.
DEM Aye votes: Bayh, Carper, Inouye, Johnson, Landrieu, Lieberman, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar

Durbin voted Aye? Indeed he did! Then he caught himself and reversed.

Senator Reid moved to reconsider. [Must have been a motion to lay the motion to reconsider on the table] He also indicated that there is activity to arrange debate on amendments to Title I (the substantive parts) and reach time agreements, with votes on those (title I) amendments to happen later today. Amendments to Title II (telecom amnesty, right to pursue civil claims allowed under current law) would be handled afterward, mostly as a means of organizing the debate.

Senator Feingold attempted to have the pending amendment set aside, to which objection (McConnell) was heard.

Bond/Rockefeller S.Amdt.3911 is offered and made pending. This is a complete substitue amendment - it contains a full and complete FISA statute] It purports to sustain privacy rights of Americans who are outside of the country. This is a new limitation on the power of the government to snoop, and appears to give more privacy rights to people outside the country, than pertain to people inside the country.

15:05: Senator Feingold proposes S.Amdt.3909 to Bond/Rockefeller S.Amdt.3911. This amendment imposes a requirement for the FISA Court to report, to Congress, its interpretations of FISA statutes. I assume this is a "going forward" requirement, and is not retroactive. [Nope - it reaches back five years] Off the substance of the amendment, it's interesting that the number of Feingold's second degree amendment precedes the numbering of the amendment it applies to.

15:34: Bond proposes second degree S.Amdt.3916 (I think this also amends S.Amdt.3911 [It does not - it is a second degree amendment to Feingold. #3911 is a substitute, in effect becoming the underlying bill]) to address objections made by the snoopers, the intelligence community. It also addresses reporting of FISC opinions to the Congress, but it completely removes the pleadings in those cases from being turned over to Congress. The pleadings disclose methods, procedures, and agents who work with the US government on an undercover basis, says Senator Bond.

Senator Feingold says that Bond's argument relating to the pleadings is without merit. Feingold's amendment provides for redacting methods, procedures and the identity of agents, from the pleadings -- leaving behind just the legal arguments that the government submitted to the FISC. [I think Feingold has the rationally sound side of this argument]

15:56: Senator Wyden speaks on the subject of the manager's amendment offered by Senators Bond and Rockefeller (S.Amdt.3911).

16:15: Senator Whitehouse attempts to introduce S.Amdt.3908, but is met with objection from Senator Bond. Senator Whitehouse expresses disappointment, and notes that objection may result in consuming precious time -- and perhaps a repeat of the "August stampede" (his words) where the Senate rushed to pass the Protect America Act. He says that Rockefeller, Leahy, Schumer, Feingold all support the amendment; and that the amendment addresses the conditions under which an administration can spy on Americans.

The function of the amendment is to cause the FISC to determine whether the conditions it sets for surveillance are followed, that is, it enables (or requires?) the Court to review the execution of the orders that it issues.

16:29: Senator Bond replies that the measure that Senator Whitehouse proposed was before the Intelligence Committee, and was rejected there. He also indicates that he will object to further amendments until Senate leadership provides direction as to how they intend the amending process to proceed. As for the oversight of surveillance, insuring that it follows court orders, he notes the presence of internal checks (DoJ observers). He reads off an answer that obviously comes from the surveillance apparatus indicating that the FISC is not equipped to judge the propriety of selecting targets in the first place, so it's not qualified to evaluate whether or not its orders are being followed.

16:35: Senator Whitehouse says that his amendment was withdrawn, not rejected in Committee, and was withdrawn so that technical issues noted by DoJ/NSA could be addressed. He goes to say that it would be unique, to his memory, that a court would be empowered to issue an order, but denied the power to confirm, itself, that its order had been followed.

16:37: Senator Bond objects to Senator Cardin's introduction of S.Amdt.3859.

16:44: Senator Inhofe gets half an hour as if in morning business. He'll be talking about nuclear energy, not FISA, and in particular about the proposed waste repository at Yucca mountain.

17:00: Senator Kennedy indicates that he has an amendment that will require the Inspector's General of the NSA and other agencies to review the past surveillance programs, and submit a classified report to Congress. He notes that Court cases are stymied by lack of standing, mootness, and assertion of state secret. The point of an Inspector General review is to produce something resembling accountability for warrantless surveillance.

This amendment is a non-starter. Although he has a point, that a vote against the amendment is a vote for secrecy and silence.

17:08: Senator Feinstein, speaking on an amendment that she would like to offer. This is the "exclusivity" amendment, whereby surveillance for foreign intelligence purposes would be limited to whatever statutory provisions Congress sees fit to pass. I think it's impossible to craft statutory language that tracks the exact line of the Constitution, and I see an "exclusivity" provision as a potential encroachment on a president's Article II powers.

17:18: Senator Kyl objected to the setting aside of the current amendment so Feinstein's amendment could be debated. Senator Reid takes the floor, and reads the "Congress should act quickly" statement issued by the administration. He claims that the Senate is trying to pass something that is constitutional, and that it should be able to vote on the various amendments. He says the Republicans are holding up the amendment process, with objections.

17:25: Senator Reid says he'll vote against cloture on this? What? Where's the cloture motion?

He adds, that if cloture isn't invoked, then the bill won't be passed by February 1st. In fact, the bill might not be passed (through the Senate) at all. He says that Senator McConnell has the cloture motion, and that under regular order, a cloture motion filed today would undergo a cloture vote on Monday.

He again asks to pass the one month extension, S.2541. Senator McConnell offers an alternative consent agreement, that to pass S.2248 as it came out of the Intelligence Committee. Neither one of these agreements will be accepted today, and mutual objections are heard.

Senator Reid asks consent to pass H.R.3773. Senator McConnell objects to this. I think he thought he was objecting to this the first time around, when he was in fact objecting to a one month extension of the Protect America Act.

17:36: Senator McConnell files a cloture motion on the Bond/Rockefeller substitute amendment.

17:38: The cloture vote will occur at 4:30 on Monday, will be treated as though it occurred at noon, meaning if cloture is invoked, the vote on the Bond/Rockefeller substitute amendment (in essence, the underlying bill) would come at 6 p.m. Tuesday, rather than 10:30 p.m. Tuesday.

17:43: Senator Reid asks for UC confirming the timing of cloture vote described above, and there is no objection.

No further votes this week, and the FISA bill obviously won't be done before next week. The next vote in the Senate will be to limit debate on the Bond/Rockefeller substitute amendment. I think the cloture motion will be rejected, on the grounds that the debate has been unfairly circumscribed by GOP objection to taking up and voting on germane amendments. There is no downside to the surveillance community, as long as the Protect America Act is extended.

19:30

Senator Harkin is on the floor, talking about the economy and economic stimulus. From the lack of action, I think the FISA debate is "dead" for the weekend. Tomorrow can be a short day, no Saturday session despite Senator Reid's urgent threats of Tuesday.

20:03: Senator Reid, "What an unusual day. We weren't allowed to vote on anything! ... The Republicans are objecting to their own bills!" Well, to be fair, they object to Democrat amendments, and are in favor of S.2248 as reported out of the Intelligence Committee. Senator Reid says he hopes the press and people are watching, because it isn't the Democrats who are delaying this legislation. He's right.

Senator Reid proposes S.Amdt.3918, and a cloture motion to limit debate on that amendment.

If cloture is not invoked on the substitute amendment (that is, if McConnell's cloture motion is rejected), the Senate would proceed to vote on the cloture motion pertaining to Reid's S.Amdt.3918. Man, I sure wonder what S.Amdt.3918 contains! First guess ... it's a one month extension of the current FISA bill, also known as the Protect America Act.

20:09: The Senate stands adjourned until 9:30 a.m. tomorrow.