Tuesday, February 26, 2008

February 2008 Mishmash

Falsehood of the day ...

Mrs. WILSON of New Mexico. ... Under the original Foreign Intelligence Surveillance Act, they made a distinction among technology. It said, if it bounces over the air, you don't need a warrant no matter where you are listening. That's because at that time almost all international calls bounced over the air over satellites. At the time in 1978, almost all local calls were over a wire. And so the law was written that said if you touch a wire in the United States, you have got to have a warrant. You are presumed to be impacting a U.S. person. So it was technology-specific for that moment in time.

I call bullshit. Read the statute.

50 USC 1801

(f) "Electronic surveillance" means--

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

And, the statute goes on, "electronic surveillance" requires a warrant, except under the limited qualifications expressed in 50 USC 1802.

Whether the law draws the statutory "need a warrant" line in the right place is certainly open to debate, but Ms. Wilson is flat out wrong that FISA as originally enacted aimed to permit the warrantless acquisition of any radio transmitted international call involving a US person, "no matter where you are listening." Unless reasonable expectation of privacy wasn't meant to extend to international communications.


On the McCain / FEC spat. I think he's being a weasel.

--- 10:05 ---

Senator Reid had three bills read for purposes of getting them on the calendar, including one (S.2665) that would extend the Protect America Act until July 2009.

The other FISA extension bill anticipates action in the current session of Congress.

S. 2664

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the ``Protect America Short-term Extension Act''.
Subsection (c) of section 6 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 557; 50 U.S.C. 1803 note), as amended by section 1 of the Act to Extend the Protect America Act of 2007 for 15 Days (Public Law 110-182), is amended by striking ``195 days after the date of the enactment of this Act'' and inserting ``on the date that is 30 days after the date of the enactment of the Protect America Short-term Extension Act''.
The amendment made by section 2 shall take effect as if enacted on February 15, 2008.

Senator McConnell notes that one of the cloture votes this afternoon has a foregone conclusion, referring to motion to proceed to an Iraq pull-out bill sponsored by Senator Feingold.

Senator Reid says that the purpose of bringing up the Iraq pull out bill is to introduce an argument that the money spent to prosecute the war in Iraq would be better spent domestically.


10:36: Vitter S.Amdt.3896, to limit funding of abortions via the Indian Health Care Improvement Act, was PASSED on a 52-42 vote
GOP Nay votes: Collins, Snowe and Specter
DEM Aye votes: Bayh, Byrd, Casey, Johnson, Landrieu, Nelson (NE), Pryor, Reid, and Salazar

10:59: Senator Reid announces a schedule for starting the Iraq/terrorism cloture votes:
- S.2633 (Iraq pull-out) at 2:40 p.m.
- S.2634 (Report on WOT) at 4:00 p.m.


Brit Hume | Special Report - Howard Dean Asks for Investigation of John McCain

Fred BARNES: ... Or the second thing is if he had said "I'm going to get this money to a bank; lend me something on the basis that I'm going to get this money." But he didn't say that either.

It is kind of funny, actually -- he told the bank, look, I'm not going to take the money, but if I do lousy in New Hampshire, then I may take the taxpayer money, and I will come back to you, and that will be my collateral. But the terms of that were never met, so it didn't happen. So I think he is going to wiggle out of this.

He told the bank "look, I'm not going to take the money"? McCain promised to take it, if necessary to repay the loan. The language in the McCain campaign loan and security agreements is fairly paraphrased as:

     We're not pledging any now-existing FEC certification of 
     matching funds, but we promise to contour spending so as 
     to maintain a right to those matching funds.  If the McCain
     campaign does not perform well, and he withdraws from the 
     matching funds program, we will reuse the (same) matching 
     fund rights (donation amounts and sufficient number of  
     states) and we WILL reapply for FEC matching funds 

"Lend me something on the basis that I'm going to get this money [if I have to, to repay this loan]". The McCain campaign made a pledge of "some" FEC certification, technically not the existing one, but a future certification that WOULD be sought if the campaign under-performed.

The contingency plan suggested by the loan agreement, to withdraw and reapply, is used to support the express recitation of "not pledging EXISTING FEC certification," while at the same time promising to preserve the right to apply for FEC certification, and pledging to apply for a fresh certification (which has the same value, same application forms, etc) if voluntary campaign donations don't cover the loan.

What the loan agreement is suggesting is a fiction. In practice, a campaign that is NOT performing well simply stays in the matching fund program. Under the scenario where the campaign had not done well, the fiction is that McCain would have withdrawn from the matching funds program (to destroy the EXISTING certification), then would reapply for matching funds using the same campaign donations that had supported the previous application. The loan agreement promised to use the NEW certification as collateral.

Of course, he wouldn't have "withdrawn and reapplied" in the event of poor campaign performance. The campaign would have stayed in the matching fund program, with public funds being available to repay the loan. Any issue associated with a "request to withdraw" simply wouldn't exist, and the questionable collateralization wouldn't come into public view.

If the FEC allows this, it becomes the standard form for ALL future campaigns that sign up for public money to obtain "not collateralized" loans to cover dry spells.

--- FISA at 13:50 ---

H/T Andy McCarthy at NRO, House GOP Will Force Vote TODAY on Bipartisan Senate-Passed FISA Modernization Bill.

Link to Minority Leader Boehner's Press Release

I don't know House procedure enough to be able to paraphrase or rephrase the procedural motion that the minority is going to make. Obviously, it's a motion that may be offered at any time, as a matter of right.

UPDATE @ 15:30 Whatever it was that Minority Leader Boehner had planned, the C-SPAN crawl reports that it didn't result in the House taking up the Senate-passed FISA bill, and the only vote I see is one that passed Tabling a Motion to Appeal a Ruling of the Chair.

Whatever the GOP tried, was ruled out of procedure by the chair, the GOP moved to appeal that ruling, and the DEMs moved to table the motion to appeal.

--- IRAQ at 15:15 ---

14:53 - 15:15: The motion to invoke cloture (limit debate) on the motion to proceed to S.2633, Iraq pull-out, was PASSED on a 70-24 vote

This is an unusual development. The GOP has uniformly rejected cloture when given an opportunity, when the subject was taking up of an Iraq pull-out bill.

Feb 26: S.2633 120 day transition & defund - Cloture invoked 70-24
Dec 18: #3875 90 day transition & defund - Rejected 24-71
Oct 02: #3164 June 30, 2008 transition & defund - Rejected 28-68
Sep 21: #2898 9 month transition - Rejected 47-47
Sep 20: #2924 June 30, 2008 transition & defund - Rejected 28-70
Jul 18: #2087 April 30, 2008 transition - Rejected 52-47
May 16: #1098 March 31, 2008 transition & defund - Rejected 29-67
Mar 15: S.J.Res.9 March 31, 2008 transition - Rejected 48-50

Senator Reid asks for unanimous consent to have 2 hours of debate, followed by a vote on the bill. Senator McConnell objects to the time limit, noting he has a number of speakers lined up to speak. Senators Reid and Durbin complain that the debate will take too long. Hey, it's only about a one day delay. It's not as though the additional 28 hours represents a significant delay for any urgent legislation.

WH Policy statement on S.2633 (will veto)
WH Policy statement on S.2634 (veto recommended)

February 27

18:30: The motion to invoke cloture (limit debate) on the motion to proceed to S.2634, to require a report setting forth the global strategy of the United States to combat and defeat al Qaeda and its affiliates, was PASSED on a 89-3 vote
Nay votes: Barrasso, Enzi and Hagel

That's a veto-proof majority, but only to limit debate on a motion to take the bill up. We don't know yet if the bill will be voted on, only that it has a chance of being made "pending."

February 28

Hmmm. The Iraq pull-out bill, S.2633, is not "pending," is not "unfinished business," and is not the subject of any unanimous consent agreement recited on today's legislative calendar. Could it be that there was never a vote on the motion to proceed to the consideration of the bill (making it "disappear" without notice)? Or that the motion was voted on and defeated on a voice vote? Those wacky Senators.

Being away and all, I'm under the usual one-day (or more) delay for viewing the details of proceedings, as the Congressional Record is prepared and published.

17:50: Yesterday, senator Reid asked unanimous consent to withdraw the motion to proceed to S.2633. Wow. Talk about an argument dying with a whimper. At the conclusion of 30 hours of debate on a motion to proceed to the Iraq pull-out bill, there wasn't even a vote on the motion. The proponent party just said "nevermind."

Wednesday, February 13, 2008

H.R. 2082 - Intelligence Authorization Conference Report

FISA on it's way to "debate for political cover" in the House.
FISA coverage "focal point" link.

The Senate is moving on to the Intelligence Authorization Conference Report. A cloture motion to limit the time for debate on the conference report was filed on Monday, and the cloture vote will occur this morning.

President Bush has signaled "will veto," due to proposed legislation respecting interrogation techniques. The old "torture" labeling argument, yada yada yada.

H.R. 2082
Intelligence Authorization Conference Report
White House Policy Statement (will veto)
Complete Senate Debate of Feb 13, 2008

The cloture vote is to occur at the expiration of the morning hour. Feinstein, Rockefeller and Wyden will use the majority's half hour of morning business.

Senator Reid incorrectly asserts that President Bush indicated in a speech this morning that he will refuse to sign another extension of FISA. This puts pressure on the House to pass the Senate bill. Reid again enters his complaints into the Record, for what that's worth.

Senator McConnell notes the overwhelming Senate support for FISA and retroactive immunity, with the bill passing on a 68-29 margin. He asserts that there is similar bipartisan majority support for FISA and retroactive immunity in the House, and that overwhelming majority will pass the Senate bill unamended, if they are given the opportunity.

09:45: Senator Reid comes back, and notes that House action on FISA may differ from Senate, and generally notes that Congress (the Senate) may need to be bipartisan in passing a further extension, if the House fails to promptly pass the Senate version of FISA, unamended. If President Bush prefers to veto an extension, better it be his prerogative, than to have Congress not at least offer the option.

10:30: Senator Bond says the CIA interrogation program is the most important tool. Fair weather friend, last week FISA was the most important.

11:05 - 11:35: Cloture to limit debate for final passage of H.R. 2082 - Intelligence Authorization Conference Report, was PASSED on a 92-4 vote
Nay votes: Burr, Chambliss, DeMint, Vitter
Not voting: Clinton, Obama, Graham, McCaskill


The House is engaged in extended voting on "the rule" that would control taking up H.R.5349, a 21 day extension of the Protect America Act. The rule is H.Res.976. (C-SPAN is incorrectly showing the underlying bill to be H.R.3521) The rule provides 1 hour of debate, 1 motion to recommit, and the right of the chair to set H.R.5349 aside, notwithstanding adoption of the rule.

12:37: Motion to vote on the rule passed on a 210-195 vote. A recorded vote on the motion to reconsider. The Republicans do not want to pass an extension, and are calling roll call votes for matters that generally pass as rote routine, at 12:56, a roll call vote on the motion to table the motion to reconsider passage of H.Res.976.

13:25: The House is debating passage of H.R.5349, a 21 day extension to the Protect America Act. The 21 day extension was rejected, in a vote taken at 16:11. The vote was party line except for 21 "blue dog" Democrats who had put the House on notice months ago. IOW, this outcome was inevitable.

WH Policy Statement (Will veto) - so passing the bill would have been futile anyway. President Bush is making an all-or-nothing stand.

The House Clerk works in real-time, unlike the prima donnas in Senate.


Senator Reid announces a unanimous consent agreement that the vote on adoption of H.R. 2082 - Intelligence Authorization Conference Report, occur at 4:30 p.m. today.

16:30 - 16:55: H.R. 2082 - Intelligence Authorization Conference Report, was PASSED on a 51-45 vote
GOP Aye votes: Collins, Hagel, Lugar, Smith and Snowe
Not voting: Clinton, Obama, Graham and McCaskill

This bill will be vetoed. I think the country has gone years without an Intelligence Authorization bill.


Back to S.1200 - Indian Health Care. This will take the rest of the week.

February 14

With respect to FISA action, I'll maintain links to ongoing debate at FISA coverage "focal point" link, and will note significant actions here. There is some rumbling that the House will fail to act on the Senate bill before the weekend, but the House Committee on Rules has passed H.Res.983, a rule providing for same day consideration and majority vote on the Senate-passed FISA bill. That is, the House is poised to waive the usual 2/3rds required for same day consideration and vote.

As a practical matter, if the president, DoJ and NSA were able to conduct the TSP and associated foreign intelligence surveillance without FISA being updated "then," it can (and has an affirmative DUTY to) do so NOW, regardless of Congressional inaction. Any "failure to act," when the "action" is completely within Article II powers, any failure to snoop to obtain foreign intelligence information, is the president's SOLE fault, not Congress's.

I think the House will pass the Senate's FISA bill before it closes shop on Friday. Much sound and fury, signifying nothing, in between.


SCOTUSblog: Analysis: Deepening complexity over detainees

13:49 - GOP Temper Tantrum in the House

"Let's just get up and leave," suggests the minority leader (Boehner). And they do. The GOP that is. If they can't debate FISA, right now, then they'll go to the tavern. This is funny stuff, well representative of the (lack of) quality in Congress.

I think the Democrats will capitulate and pass FISA later today. Just a hunch, nothing concrete to base that hunch on.

President Bush Discusses Protect America Act (Text of presser).


The House GOP conducted a presser on the steps of the Capitol. Every example of successful surveillance that they specified, is a pure Article II power that does not need legislation to enable or authorize the snoop.


Romney has now changed his campaign from "suspended" to "withdrawn," and rendered his delegates to Senator McCain. I wonder who I'll write-in?


Tapegate news ...

Judge Asks Details on Destroyed Evidence - By Matt Apuzzo (AP)

In a ruling Thursday afternoon, Roberts said he wouldn't require the government to reveal its handling of all evidence since 2005. But he insisted that prosecutors reveal whether any destroyed evidence was relevant to his case involving a Guantanamo Bay detainee. ...

He gave the Justice Department until March 13 to do so.

See too, SCOTUSblog: Judge eases back on tapes probe.

Contrast with Judge Kennedy, who concluded his preservation of evidence order was respected.

--- 17:17 ---

Senator McConnell chiding the House for not acting on the Senate-passed FISA bill. It isn't clear where this is headed, but interestingly, and contrary to the weight of evidence, Senator McConnell indicates that the money judgments against telecoms could put them out of business. Drama queen.

Well, what was going to be another example of bipartisan cooperation is turning sour. Good thing the President has Article II authority, and needn't rely on Congress for the power to undertake surveillance for foreign intelligence information.

Hard sell on retroactive immunity. Without the right to ignore the law (50 USC 1809, etc.) the telecoms won't cooperate. It's BS. The probability of a civil suit prevailing is basically NIL, zero. Why? State secret. Elements of recovery including proving not only illegal surveillance, but also "publishing" the information obtained, i.e., an "illegal use" must occur, not just an "illegal listening."

17:43: Senator Reid makes a couple of UC requests. One for a 15 day extension (objection by McConnell), then to call the bill back from the House so that the Senate could formally request a conference (objection by McConnell). Senator Durbin chimes in, "This is a crisis in logic. The minority leader objects to extending the law, then objects because the law is expiring."

Senator McConnell comes in with the reality that the Senate bill passed the Senate on a 2:1 margin, and that the House will pass the Senate bill if it has an opportunity to vote on it. He's blaming the House, and in particular House leadership for not taking up and passing the Senate-passed bill.

He also says the telecoms aren't cooperating to the extent the government expects, due to the risk of lawsuits that the law admits. 50 USC 1810, "the law," is the source of the cause of legal action! And that law stands un-repealed.

Senator Rockefeller indicates that he passed retroactive immunity because he thought it was the right thing for the country, not because President Bush told him to pass it (Ummm, "liar liar pants on fire," the DNI language came from the administration, not from the Intelligence Committee). He also says he will be meeting with his House counterpart (chair of Intelligence) and will take his licks for shortchanging the House time to debate the bill - although he believes the House will pass the Senate bill, given time for debate.

--- 17:59 ---

Senator DeMint calls the Senate back to "regular order" on Indian Health Care.

18:10: The House stands adjourned until 10:00 a.m. tomorrow, and according to the C-SPAN hawker, there will be no legislative business before the House tomorrow. Uh oh ... no extension of the Protect America Act. I wonder if a 30 day extension would have obtained the same result. Yeah, two weeks ago, when it would have been vetoed.

WH Statement on Protect America Act

This is just flat out false. Will they lose "a" power? Yes. But not "the" (which is naturally read as "the totality" of power to snoop on new foreign intelligence targets.

The Attorney General and the Director of National Intelligence would be stripped of the power to authorize new certifications against foreign intelligence targets ...

Here's another assertion. Tell me again why retroactive immunity is required. This says that compulsion is available ...

And they could be stripped of their power to compel the assistance of a private company not already helping us.

Tough telling which side will have the upper hand with the non-partisan parts of the public, but I have to say, fear, like "dirt," sells.


SCOTUSblog: Government appeals new detainee case

The new appeal is Gates v. Bismullah, et al. (docketed as 07-1054). In an accompanying motion to expedite the case, the government said that, if the Court does agree to go forward with the new case now, the detainees' lawyers be required to file a response to the appeal by March 4, with a government reply March 11, and consideration of the new case by the Justices at the scheduled Conference on Friday, March 14. If the Court then decides to grant review, it suggested that its merits brief be due April 11, the detainees' brief May 1, the government reply on May 8, and oral argument on Wednesday, May 14.


Lawmakers Move to Grant Banks Immunity Against Patent Lawsuit By Jeffrey H. Birnbaum
Washington Post Staff Writer
Thursday, February 14, 2008; Page A22

Sen. Jeff Sessions (R-Ala.) has sponsored an unusual provision at the urging of the nation's banks granting them immunity against an active patent lawsuit, potentially saving them billions of dollars.

--- 20:15 ---

Senator Reid set up, via reciting UC agreements, cloture motions on motions to proceed to two contentious pieces of legislation, with cloture votes on the motions to proceed to occur on Tuesday, Feb. 26th.

On disposition of H.R.1328 (Indian Health Care), move to take up the following, and file cloture motions on the motions to proceed:

S.2633 - to provide for the safe redeployment of United States troops from Iraq.
S.2634 - to require a report setting forth the global strategy of the United States to combat and defeat al Qaeda and its affiliates.

It was agreed that cloture motions on the motions to proceed to the above two bills would be "timely filed for a Tuesday cloture vote," when filed on Monday, February 25th.

The text of these two bills, introduced on February 13th, is not available at the Library of Congress web-site as of Friday morning, February 15th. Both bills are sponsored by Senator Feingold, with Senators Reid and Menendez being co-sponsors.

Senator Reid also filed a cloture motion on a motion to proceed to a third piece of legislation, with this cloture vote to NOT occur prior to the above two.

H.R.3221 - New Direction for Energy Independence, National Security, and Consumer Protection Act (22 short titles!)

The Senate stands in recess, setting up a series of pro forma sessions until 3:00 p.m. Monday Feb 25th.

Pro forma sessions:
Friday, Feb 15 at 10:00 a.m.
Tuesday, Feb 19 at 11:00 a.m.
Friday, Feb 22 at 10:00 a.m.

February 15

Just a reminder about a power delegated to the president, by Article II, Section 3 of the US Constitution:

he may, on extraordinary Occasions, convene both Houses, or either of them

Failure to pass the FISA bill, sent to Congress by the administration, doesn't, in President Bush's judgment, qualify as a "extraordinary Occasion" sufficient for him to exercise his constitutional prerogative.

President Bush Meets with Bicameral Republican Leadership

by blocking this piece of legislation our country is more in danger of an attack


Private Firms Need Liability Protection - DNI Mike McConnell

It takes advantage of a natural conflation of "absence of retroactive immunity" with "FISA snooping oversight protocol as expressed before August 2007."


Feingold Calls on Administration to Focus on Fighting Al Qaeda


  • Requires the safe redeployment of U.S. combat troops from Iraq.
  • Requires that after 120 days, funding in Iraq be limited to the following: conducting targeted military operations against al Qaeda and its affiliates, providing security for U.S. personnel and infrastructure, training Iraqi Security Forces, providing equipment and training to U.S. troops, and continuing to redeploy U.S. troops from Iraq.
  • Requires the administration to present a report to Congress within 60 days of enactment outlining its global strategy for defeating al Qaeda and its affiliates. The report shall include an analysis of the relative threats in particular countries and regions and recommendations to ensure that U.S. military, intelligence and diplomatic assets are best deployed to meet those geographic threats.
  • Requires the administration to develop a strategy ensuring that deployments do not undermine military readiness or homeland security, and that reserve units are not deployed more than once every four years and regular units are not redeployed more than once every two years.

February 16, 2008

President's Radio Address - Feb 16, 2008

At midnight, the Attorney General and the Director of National Intelligence will be stripped of their power to authorize new surveillance against terrorist threats abroad.

Democratic Rebuttal - Feb 16, 2008

Negotiation should take place immediately. In the meantime, Democrats are willing to extend the current Protect America Act. But the President has threatened to veto any extension, and Senate Republicans have blocked such a bill. Every House Republican voted against extension of the law.

Analysts say FISA will suffice - By Sean Lengell

Timothy Lee, an adjunct scholar at the Cato Institute, said the last time Congress overhauled FISA -- after the September 11 terrorist attacks -- President Bush praised the action, saying the new law "recognizes the realities and dangers posed by the modern terrorist."

"Those are the rules we'll be living under after the Protect America Act expires this weekend," Mr. Lee added. "There's no reason to think our nation will be in any more danger in 2008 than it was in 2002, 2003, 2004, 2005, or 2006."

That's a bit misleading, because in the 2001-2006 timeframe, as President Bush admits, the DoJ and NSA were snooping beyond the limits of 50 USC 1802 (warrantless surveillance under the law) without court oversight. Then, in January 2007, certain snooping orders were brought under FISC oversight. So, while the public posture is unchanged, the extent of snooping depends on the snooping orders, and the DoJ and NSA may have relaxed their surveillance.

That's along-winded way of saying that there is no way to tell whether or nation is in any more danger now than it was in 2002, 2003, 2004, 2005, or 2006. We'd be safest if we dispensed with the fourth amendment altogether.


Collection of FISA articles linked from HowAppealing

February 19, 2008

SCOTUSblog: "Detainees: Lower court fracture a problem"

The brief is an easy read.


I've mistakenly asserted that the first appearance of a request for retroactive immunity for FISA-related surveillance was in April 2007. Prompted by a poster at EmptyWheel, I looked closely at Heather Wilson's September 2006 FISA Bill (H.R.5825), and saw that Rep. Cannon introduced retroactive immunity at that time. Links and details toward the end of comments at Don't Cry For The Telcos.

February 22, 2008

House and Senate Chairmen Continue Work on FISA Reform - Feb 21, 2008

"In what should have been a bipartisan, bicameral meeting, staff members of the House and Senate Judiciary and Intelligence Committees met today to work in good faith to reach a compromise on FISA reform. As we have said, we are using this week to work on a compromise that strengthens our national security and protects Americans' privacy. Unfortunately, we understand our Republican counterparts instructed their staffs not to attend this working meeting, therefore not allowing progress to be made in a bipartisan, bicameral way. While we are disappointed that today's meeting could not reflect a bipartisan effort, we will continue to work and hope Republicans will join us to put our nation's security first."

(See also FISA Documents Now Available to Full Judiciary Committee)

Hoyer Statement on Important FISA Meeting - Feb 21, 2008

"I am disappointed that House and Senate Republicans apparently instructed their staffs not to participate in today's bicameral meeting on modernizing the Foreign Intelligence Surveillance Act. The decision to not participate, coupled with their vote against an extension of their bill - the Protect America Act - only serves to reinforce the perception that Republicans prefer to have a political issue rather than a strong new FISA bill in place as quickly as possible. Certainly Republicans do not really believe that the role of the House is to simply rubberstamp whatever bills the Senate passes.

"I am hopeful that Republicans will reconsider and join us in crafting a bipartisan FISA bill that protects our nation and our civil liberties. It is time to come together and work in the best interests of our nation's security."


Last week, the House Democratic leadership had the opportunity to put national security first but they chose instead to leave town for a twelve day vacation. Today's so-called bicameral staff meeting is nothing more than a partisan attempt by Democratic staff at the 11^th hour to dismantle the bipartisan compromise that a majority of the Senate and House support.

The time for excuses and more meetings is over. House Democratic leaders have had months to work in a bipartisan fashion yet they have done nothing but stall. If they want to work in good faith they should give their members the opportunity to pass the bipartisan compromise that protects civil liberties and gives our terror fighters the tools they need to keep American families safe.

Roundtable Interview with President and Laura Bush - Feb 21, 2008

Q On FISA -- I understand your position, but what I'm unclear about is whether you're doing something to break the deadlock? Do you see yourself engaging with the other side, compromising? Or where do we go from here?

THE PRESIDENT: How do you compromise on something like granting liability for a telecommunications company? You can't. If we do not give liability protection to those who are helping us, they won't help us. And if they don't help us, there will be no program. And if there's no program, America is more vulnerable.

What I'm going to do is continue to remind people that unless they get this program done, we're going to be vulnerable to attack.

Q Do you see an opportunity to work with the Democrats and --

THE PRESIDENT: I mean, there may be one; I don't know. But I will just tell you, there's no compromise on whether or not these phone companies get liability protection. See, what the American people must understand is that without help from the phone companies, there is no program. And these companies are going to be subject to multi-billion dollar lawsuits by trial lawyers, plaintiffs' attorneys. And it's going to drive them away from helping us -- unless they get liability protection -- prospective and retroactive.

It's just so important for people to understand the dangers. If we don't have the capacity to listen to these terrorists, we're not going to be able to protect ourselves.

MS. PERINO: Just a reminder that they have the votes to pass it in the House.

THE PRESIDENT: They've got enough votes to pass the bill in the House. So, yes, I'm going to talk about it a lot, and keep reminding the American -- I'm glad you asked the question, because this will give everybody a chance to know the dangers of the course that some in the House have put us on. And I'll keep talking about it.

You know what? The American people understand that we need to be listening to the enemy.

Press Gaggle by Scott Stanzel - Feb 22, 2008

This morning the President had his normal briefings at 8:00 a.m. And at 10:05 a.m. he's recording the radio address, and the radio address is about the urgent need for Congress to pass legislation to provide our intelligence officials all the tools that they need to protect America from terrorist attacks. So it will be focused on the Protect America Act. ...

Q What's the status, if any, of negotiations with Congress over the terrorist surveillance? What do you expect to happen when they come back next week?

MR. STANZEL: What we would like to see happen is that Congress take up the House of Representatives, which is currently blocking the bipartisan legislation that passed the Senate; we'd like to see that taken up. That has received a supermajority in the Senate, and would pass the House if it was brought up for a vote. But House Democratic leaders are blocking that. That's what we would like to see.

Q That being the case, are there any active negotiations, or is everybody just -- has their positions --

MR. STANZEL: Well, Congress has been out of town on a 10-day recess, so at this point I can't speak to staff-level discussions. But we think that the path forward on this legislation is very clear, and it's a very simple path; it's one that's supported not only by a majority in the Senate, but also by a majority in the House. So that is what we would like to see happen.

Q Okay, and one quick follow up on that. As I understand it, the sticking point is really about retroactive immunity for the telecoms, not prospective immunity. So help me understand the administration's argument that without this retroactive immunity, the telecoms would be reluctant in the future to cooperate with a surveillance request. If prospective immunity is already assured, I don't understand how retroactive immunity has any effect.

MR. STANZEL: Well, retroactive immunity is something that the DNI has spoken regularly about. He spoke last weekend about it on one of the Sunday programs. And it's important that we provide that retroactive immunity for companies that were alleged to have helped after the 9/11 attacks.

What we have is a situation now where the Protect America Act was let to expire, calls into question prospective retroactive -- or prospective immunity. And the more uncertainty there are on these issues, the less willing these companies are going to be, presumably, to put their shareholders at risk of these multi-billion dollar lawsuits.

Q But let's assume it was passed with prospective immunity -- which is had, you know, six months ago -- but retroactive immunity wasn't there. Wouldn't that solve the concerns?

MR. STANZEL: We have always been supportive of providing retroactive immunity to the companies that felt a patriotic duty to help their country in the aftermath of the most significant terrorist attack in the history of this nation. We think that's important.

The opposing arguments for that I assume are because they want trial lawyers to be able to sue those companies. We don't think that's right. We think that we should provide that immunity and we think that that's necessary. ...

Q Can I go back to the immunity question. You're saying that without that retroactive immunity, you know, companies may not be willing to put their shareholders at risk and cooperate. So we're talking about voluntary cooperation, and it's not just the telecom, is it? I mean, how serious is that concern? I mean, what kind of -- what is the extent of the cooperation that -- and what other, outside of telecom context -- are you talking about, like, car rentals and hotels?

MR. STANZEL: The DNI has said if we don't have cooperation from the private sector we don't have a program, period. So it's very serious. So that is -- our first and foremost concern is that immunity protection be provided so we have partnerships with the private sector, because without that -- this is not all information that the government, itself, holds. It's information that we need to work with the private sector to receive, and to administer the program. And without that, we don't have a program.

Q But when you talk about the private sector, what kind of -- I mean, what kind of --

MR. STANZEL: Without going into the broad details of the program, I think those are the types of questions that are best left to the intelligence professionals that do administer the program.

Q Thank you, Scott. Just a follow-up question. As of today, there is no surveillance bill on the books, no surveillance laws. What is the President doing specifically, in terms of lobbying the House of Representatives, to get the package from the Senate through? Will he call members, will he bring member --

MR. STANZEL: We can keep you posted on any outreach that he has. I know there is regular communications between the DNI and the Attorney General and members of Congress on this issue. The President is highlighting the need for it in his radio address that he'll be recording today. So it's a very important issue, and he continues to be focused on it.


Senator Leahy Statement - Judicial Confirmation Hearing : Feb 21, 2008

I said that we would treat this President's nominees more fairly than Republicans treated President Clinton's, and we have. ... Despite the fact that those on the other side of the aisle refused to proceed on any nominations to Fifth Circuit during President Clinton's entire second term, we are proceeding today.

Texas no-shows at judicial nomination hearing

What if they held a hearing and (almost) no one showed up? That's what happened at today's Senate Judiciary Committee hearing on the nomination of former Texas District Judge Catherina Haynes to the Fifth Circuit Court of Appeals. No sign of either Texas home senators John Cornyn or Kay Bailey Hutchison to introduce the nominee. And Cornyn is a member of the committee!

There was no committee vote, so the nomination isn't yet available for entry in the Senate Executive Calendar.


Court wants fast filing on new detainee case

           (ORDER LIST:  552 U.S.)

                             *FRIDAY, FEBRUARY 22, 2008*

                               ORDER IN PENDING CASE


                 The respondents are directed to file a response to the
            petition for a writ of certiorari on or before 2 p.m., Tuesday,
            March 4, 2008.  The petitioners may file a reply brief on or
            before 2 p.m., Tuesday, March 11, 2008.  Briefs of   /amici/
            /curiae/ supporting any party are to be filed on or before 2  
            p.m., Tuesday, March 4, 2008.

February 23, 2008

On FISA - several article links and some editorial commentary. The writers take mutually exclusive positions. Most readers will adopt one or the other, without realizing that there actually is middle (factual) ground.

Balkinize: President Bush "Degrade[s]" Our Intelligence Capability

Weekly Standard: Are House Democrats serious about national security?

HowAppealing: More Sharp Words Traded Over Lapsed Wiretap Law


On Senator McCain's opt-in/opt-out of public matching funds for his primary campaign ...

FEC "Notice to Reporters and Editors" - Feb 21, 2008

FEC Advisory Opinion 2003-35 (Dec. 12, 2003)
Gephardt for President
Whether a Presidential primary candidate who has already qualified for primary matching funds may withdraw from the matching fund program in order to campaign without spending limits.

     [may the payment scheduled for January 2, 2004 ... 
     be deferred until a later date to preserve the Committee's 
     option to withdraw from the program prior to receiving funds?]

     Their only legal option to delay payment is to 
     request that the Commission withdraw its certification,
     which will rescind the Agreement entirely.

Senator McCain's February 6, 2008 letter to the FEC does NOT request the Commission to withdraw its certification. It takes the tone that the campaign, and not the Commission, controls the presence or absence of FEC certification.

This letter is to advise you that I, on behalf of myself and John McCain 2008, Inc., my principal campaign committee, am withdrawing from participation in the federal primary-election funding program established by the Presidential Primary Matching Payment Act. No funds have been paid to date by the Department of the Treasury, and the certification of funds has not been pledged as security for private financing.

I will make no further requests for matching fund payment certifications and will not accept any matching-fund payments, including initial amount and other amounts certified by the Commission in connection with my campaign's previous submissions. My campaign has no submitted to the Department of Treasury any bank account information and will also inform them directly of our withdrawal from the matching funds system.

Comparing McCain's situation with the situation leading to Advisory Opinion No. 2003-35.

(JOHN MCCAIN 2008 INC. - C00430470 : FEC filings)

McCain's legal position is that his loan agreement did not amount to pledging fund certification as security for private financing. Like Clinton's "it depends on the meaning of 'is'," McCain's position depends on the meaning of "pledging fund certification."

At the time he entered into the Agreements (Nov 14 and Dec 18, 2007), he certainly was qualified and in-line to obtain FEC certification. He was "in." As of December 20, 2007, the FEC certified a fund amount to McCain.

The term of the loan was 6 months, it is/was to be repaid IN FULL on May 14, 2008.

Republican chairman of the FEC, David M. Mason, has requested the McCain campaign to address at least the following points with respect to the question of "pledging fund certification."

The paragraph entitled "Additional Requirements" set forth in the Affirmative Covenant section of the November 14 agreement (page 2), as well as the December 17 modification to that paragraph (page 2 of the modification).

The references to matching funds in the paragraph entitled "Collateral Description," set forth in the November 14 "Commercial Security Agreement" (page 1 of that agreement). (The paragraph contains no reference to certifications of matching fund eligibility or related rights obtained after January 1, 2008, thus apparently bringing any such certifications that might occur within the paragraph's more general description of the collateral for the line of credit.)

The December 17 modification to the paragraph mentioned (page 3 of the modification), which removed the reference to certifications and related rights "currently possessed by grantor or obtained before January 1, 2008" and replaced it with a reference to certifications or rights "now held by Grantor[.]"

November 14, 2007 Loan and Security Agreements

Additional Requirement. Borrower and Lender agree that if Borrower withdraws from the public matching fund program by the end of December 2007, but John McCain then does not win the New Hampshire primary or place at least within 10 percentage points of the winner of the New Hampshire Primary, Borrower will cause John McCain to remain an active political candidate and Borrower will, within thirty (30) days of the New Hampshire Primary (i) reapply for public matching funds, (ii) grant to Lender, as additional collateral for the Loan, a first priority perfected security interest in and to all of Borrower's right, title and interest in and to the public matching fund program, and (iii) execute and deliver to Lender such documents, instruments and agreements as Lender may require with respect to for foregoing.

NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this Agreement is in effect, Borrower shall not, without the prior written consent of Lender:

... sell, transfer, mortgage, assign, pledge, lease, grant a security interest in, or encumber any of Borrower's assets, including, without limitation, any of Borrower's right, title and interest in and to the public matching fund program or any matching fund entitlement thereunder, whether now existing or hereinafter arising ...

COMPLIANCE WITH THE FEDERAL ELECTION COMMISSION'S MATCHING FUNDS PROGRAM Borrower agrees and covenants with Lender that while this Agreement is in effect, Borrower shall not exceed overall or state spending limits imposed under the Federal Matching Funds Program, if applicable.

STATUS OF CURRENTLY HELD CERTIFICATIONS OF MATCHING FUNDS. Borrower and Lender agree that any certifications of matching funds eligibility currently possessed by Borrower or obtained before January 1, 2008, and the right of John McCain 2008, Inc., to receive payment under these certifications are not collateral under the Commercial Security Agreement for this Loan.

Collateral ... It is expressly understood and agreed that "Collateral" specifically excludes any certification of matching funds eligibility currently possessed by Borrower or obtained before January 1, 2008.

COLLATERAL DESCRIPTION ... Grantor and Lender agree that any certifications of matching funds eligibility, including related rights, currently possessed by Grantor or obtained before January 1, 2008, are not themselves being pledged as security for the Indebtedness and are not themselves collateral for the Indebtedness or subject to this Security Agreement. Grantor agrees not to sell, transfer, convey, pledge, hypothecate or otherwise transfer to any person or entity any of its present or future right, title and interest in and to the public matching funds program or any certifications of matching funds eligibility, including related rights, issued with respect thereto without the prior written consent of Lender.

December 17, 2007 Loan and Security Agreements

Additional Requirement. Borrower and Lender agree that if Borrower withdraws from the public matching fund program, but John McCain then does not win the next primary or caucus in which he is active (which can be any primary or caucus held the same day) or does not place at least within 10 percentage points of that winner of that primary or caucus, Borrower will cause John McCain to remain an active political candidate and Borrower will, within thirty (30) days of said primary or caucus (i) reapply for public matching funds, (ii) grant to Lender, as additional collateral for the Loan, a first priority perfected security interest in and to all of Borrower's right, title and interest in and to the public matching fund program, and (iii) execute and deliver to Lender such documents, instruments and agreements as Lender may require with respect to for foregoing. Borrower and Lender agree that Borrower will provide oral or written notice at least 24 hours before notice of withdrawal from the public matching funds program is provided by Borrower or John McCain to the Federal Election Commission.

COMPLIANCE WITH THE FEDERAL ELECTION COMMISSION'S MATCHING FUNDS PROGRAM Borrower agrees and covenants with Lender that while this Agreement is in effect, Borrower shall not, without Lender's prior written consent, exceed overall or state spending limits imposed under the Federal Matching Funds Program, irrespective of whether Borrower is subject to such program as of any applicable date of determination.

STATUS OF CURRENTLY HELD CERTIFICATIONS OF MATCHING FUNDS. Borrower and Lender agree that any certifications of matching funds eligibility now held by Borrower, and the right of Borrower and/or John McCain to receive payment under such certification, are not (and shall not be) collateral for the Loan.

Collateral ... It is expressly understood and agreed that, "Collateral" specifically excludes any certification of matching funds eligibility now held by Borrower and/or John McCain, and any right, title and interest of Borrower and/or John McCain to receive payments thereunder.

COLLATERAL DESCRIPTION ... Grantor and Lender agree that any certifications of matching funds eligibility, including related rights, now held by Grantor are not themselves being pledged as security for the Indebtedness and are not themselves collateral for the Indebtedness or subject to this Security Agreement. Grantor agrees not to sell, transfer, convey, pledge, hypothecate or otherwise transfer to any person or entity any of its present or future right, title and interest in and to the public matching funds program or any certifications of matching funds eligibility, including related rights, issued with respect thereto without the prior written consent of Lender.

February 24, 2008

Suicide Attack Kills 25 South of Baghdad

The suicide bomber detonated at a tent where pilgrims stop to eat and drink, police said. ...

For example, a parked car loaded with explosives was discovered and put out of action near Karbala, one of several potential attacks that have already been averted, [Police Chief Raid Shakir] Jawdat said.

Is waterboarding being used to prevent these mass-casualty attacks? If not, why not?


On the subject of FISA and the heated political rhetoric: H/T NRO in Andrew McCarthy's Ridiculous LATimes Accusation of White House "Backtracking", a link to a Feb 23 Press Release from the DoJ.


The Hill: DNC to file FEC complaint against McCain

McCain spokesman Brian Rogers responded that "Howard Dean's hypocrisy is breathtaking given that in 2003 he withdrew from the matching funds system in exactly the same way that John McCain is doing today."

Well, not quite exactly.

FEC Approves Matching Funds for 2004 Presidential Candidates
(December 30, 2003)

WASHINGTON -- The Federal Election Commission has certified $15,417,353.84 in Federal Matching Funds to six Presidential candidates for the 2004 election. The U.S. Treasury Department will make the payments on January 2, 2004.

... Howard Dean initially qualified to receive matching funds, but his campaign withdrew its request for funds.

          CANDIDATE                      CERTIFICATION

   Wesley K. Clark (D)                  $ 3,733,354.47
   John R. Edwards (D)                  $ 3,368,039.67
   Richard A. Gephardt (D)              $ 3,131,788.10
   Dennis J. Kucinich (D)                 $ 735,665.22
   Lyndon H. LaRouche (D)                 $ 838,848.34
   Joseph Lieberman (D)                 $ 3,609,658.04

Federal Election Commission - Volume 30, Number 2 (Feb 2004)

    Dean Requests Withdrawal
    of Certification for Matching

    On December 18, 2003, the
    Commission withdrew its certifica-
    tion that Presidential candidate
    Howard Dean and his authorized
    committee, Dean for America (the
    Committee), were eligible to receive
    public matching payments. The
    action came after Dr. Dean informed
    the Commission that he "no longer
    wish[es] to participate in the Match-
    ing Payment system administered by
    the Commission" and "withdraw[s]
    the candidate agreement filed with
    the Commission pursuant to 11
    C.F.R. § 9033.1 and 2." Since the
    Committee will not be receiving
    federal matching funds, the Com-
    mission will not conduct a manda-
    tory audit of the Committee
    pursuant to 26 U.S.C. §9038(a).

                         --Amy Kort

FEC Approves Matching Funds for 2008 Candidates
(December 20, 2007)

WASHINGTON - The Federal Election Commission (FEC/the Commission) has certified $19,287,504.65 in federal matching funds to seven Presidential candidates for the 2008 election. These totals reflect contributions submitted by qualified candidates (including their initial threshold submissions) through December. Additional contributions may be submitted for certification on a monthly basis.

          CANDIDATE                      CERTIFICATION

   Joseph Biden                           $ 857,188.89
   Christopher Dodd                     $ 1,447,568.09
   John Edwards                         $ 8,825,424.82
   Duncan Hunter                          $ 100,000
   Dennis Kucinich                        $ 100,000
   John McCain                          $ 5,812,197.35
   Thomas Tancredo                      $ 2,145,125.50


The best piece I've found on the McCain/FEC dispute ...

Everything You Need to Know About John McCain and Matching Funds - by Brad Smith

Mr. Smith "has the chops" to render an opinion here. In fairness, it's notable that he and Trevor Potter (McCain's lawyer and advocate for strict campaign finance regulation) are generally at odds on First Amendment questions, and that Mr. Smith may be viewed as "biased" against Senator McCain that reason. I have also seen a report that Mr. Smith's [2000] nomination to the FEC was held up by one Senator McCain.

Mr. Smith's article also reports that the FEC absence of quorum is directly attributable to a "hold" placed and maintained by one Senator Obama. I have a tougher time assigning party responsibility for the absence of FEC quorum. Senator Reid asserts that he has his party's agreement (Obama included) to subject von Spakovsky to a straight up or down vote, but the GOP objects, unless all four nominees are voted as a unit, or, in the alternative, the other nominees be subjected to 60 vote thresholds.

Monday, February 04, 2008

FISA and Economic Stimulus

S.2248 - FISA (All Amendment and Debate Links)

The Senate will open at 2:00 p.m. and move directly to S.2248, FISA. An unrelated cloture vote will be conducted at 5:30 p.m., to limit debate on moving to proceed to H.R.5140, the House-passed economic stimulus package.

Obviously, with a grand total of 14 hours of debate time being allocated, plus a parliamentary interruption to move economic stimulus along, FISA won't be sent to the House by the end of today, probably not by the end of tomorrow, and maybe not before the end of the week.

The cloture motion to cause the cloture vote noted below is yet to be filed, and any Senator has the right to insist on the Senate Rule XXII time periods: 1 day layover between filing the cloture motion and taking the cloture vote (this would be squared by filing a cloture motion today); plus 30 hours after the cloture motion passes before voting to pass the final bill. While they have a right to, I doubt Senator Dodd or Feingold will force the 30 hour delay after the cloture motion passes.

The above was composed on Monday, February 4th. Other than the references to the economic stimulus cloture vote, it's groundhog day on February 11th. Same time, same subject, same ultimate outcome. Final passage of FISA will probably occur late Tuesday, February 12th.

Link to July 9, 2008: H.R.6304 Amendment and Vote Summary.

S.2248 Amendment and Vote Summary
(page references are to formal print version of S.Amdt.3911)

  1. 8 Amendments that pass or are tabled on majority votes
    • Bond 3941 (20 minutes) 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))
      PASSED Feb 7, 2008 at 18:22, on a voice vote.
    • Bond 3938 (20 minutes) 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 - my interpretation is that international trafficking in hand-grenades would qualify as an event of international proliferation of WMD: (p) `Weapon of mass destruction' means--"(1) any destructive device (as such term is defined in section 921 of title 18, United States Code) that is intended or has the capability to cause death or serious bodily injury to a significant number of people]
      PASSED Feb 12, 2008, on voice vote
    • Feingold 3907 (2 hours) is "Strike Title II"
      REJECTED Feb 12, 2008 at 11:03, on a 31-67 vote (Bayh, Carper, Conrad, Feinstein, Inouye, Johnson, Kohl, Landrieu, Lieberman, Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar, Stabenow and Webb voted NAY. Clinton and Graham did not vote)
    • Specter/Whitehouse 3927 (2 hours) substitutes the government for telecoms in civil suits
      REJECTED Feb 12, 2008 at 11:44, on a 30-68 vote (Baucus, Bayh, Biden, Carper, Conrad, Dodd, Dorgan, Feinstein, Inouye, Johnson, Klobuchar, Landrieu, Lieberman, Lincoln, Mikulski, Murray, Nelson (NE), Pryor, Rockefeller, Salazar and Tester voted NAY. Specter voted AYE. Clinton and Graham did not vote)
    • Feingold 3913 (40 minutes) tightens grounds for transferring "foreign intelligence initiated" acquisition to criminal justice system by inserting "significant purpose" at four appropriate locations. It inhibits or prohibits a practice referred to as "reverse targeting."
      • On page 6, line 6
      • On page 7, line 7
      • On page 9, between lines 9 and 10
      • On page 17, line 2

      REJECTED Feb 7, 2008 at 18:17, on a 38-57 vote (Feinstein, Inouye, Johnson, Landrieu, Lieberman, Lincoln, Pryor, Rockefeller and Salazar voted NAY. Clinton, Obama, McCain, Dorgan, and Nelson (NE) did not vote)
    • Feingold 3912 (40 minutes) inserts "significant purpose" at one location (page 10 between lines 5 and 6). The function of this is to inhibit or prohibit "bulk collection" of international communications.
      REJECTED Feb 12, 2008 at 11:22, on a 37-60 vote (Bayh, Carper, Inouye, Johnson, Landrieu, Lieberman, Lincoln, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller and Webb voted NAY. Clinton, Craig and Graham did not vote)
    • Feingold 3915 (40 minutes) empowers the FISC to order the government to either correct deficiencies or cease acquisition, if a subsection (f) certification is deficient
      REJECTED Feb 7, 2008 at 17:46, on a 40-56 vote (Bayh, Carper, Inouye, Johnson, Landrieu, Lieberman, Pryor, and Rockefeller voted NAY. Clinton, Obama, McCain and Nelson (NE) did not vote)
    • Feingold/Webb 3979 (90 minutes) [See, e.g., Feingold/Dodd 3955 which prohibits the use of evidence obtained in searches, if the searches were not performed in accordance with the statute]
      REJECTED Feb 12, 2008 at 10:43, on a 35-63 vote (Bayh, Carper, Conrad, Feinstein, Inouye, Johnson, Landrieu, Levin, Lieberman, Lincoln, Mikulski, Nelson (FL), Nelson (NE), Pryor, and Rockefeller voted NAY. Clinton ahd Graham did not vote)
  2. 4 Amendments that require 60 votes to pass
    • Feinstein 3919 (2 hours) removes the pending civil litigation pertaining to the TSP to the FISC and defines the standard of review leading to dismissal
      REJECTED Feb 12, 2008 at 12:01, on a 41-57 vote (Carper, Dodd, Inouye, Johnson, Landrieu, Lieberman, Menendez, Nelson (NE), Pryor, and Rockefeller voted NAY. Clinton and Graham did not vote)
    • Cardin 3930 (60 minutes) is an approximate 4 year sunset for the procedure to obtain new orders (Dec 31, 2011)
      REJECTED Feb 6, 2008 at 15:42, on a 49-46 vote
    • Whitehouse 3920 (60 minutes) 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 FISC to assert remedies to enforce compliance
      PASSED Feb 12, 2008, on a voice vote.
    • Feinstein 3910 (90 minutes) is an attempt to match the president's Article II power with "exclusive means" statutory language
      REJECTED Feb 12, 2008 at 10:18, on a 57-41 vote (Lieberman, Nelson (NE) voted NAY. Collins, Craig, Hagel, Smith, Snowe, Specter, Sununu and Voinovich voted AYE. Clinton and Graham did not vote)
  3. Passage of a manager's amendment
  4. Cloture vote on passage of the bill [Tuesday afternoon] (cloture motion filed Friday, February 8)
    PASSED Feb 12, 2008 at 12:18, on a 69-29 vote (Baucus, Bayh, Carper, Casey, Conrad, Feinstein, Inouye, Johnson, Kohl, Landrieu, Lieberman, Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar, and Webb voted AYE. Clinton and Graham did not vote)
  5. Vote on final passage [After 5 p.m. Tuesday]
    PASSED Feb 12, 2008 at 17:54, on a 68-29 vote (Baucus, Bayh, Carper, Casey, Conrad, Inouye, Johnson, Kohl, Landrieu, Lieberman, Lincoln, McCaskill, Mikulski, Nelson (FL), Nelson (NE), Pryor, Rockefeller, Salazar, Webb and Whitehouse voted AYE. Clinton, Graham and Obama did not vote)

There will NOT be a Conference Committee

After passage, the contents of S.2248 are substituted for the House's bill, H.R.3773, the RESTORE Act, and the Senate bill will be sent to the House in the vehicle of H.R.3773. The Senate has formally signaled that it will not request a conference with the House, to resolve differences. 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, 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, even if the other chamber makes such a request. Further auguring against a conference committee ever coming into being, insistence on its amendment and requesting a conference is a debatable motion in the Senate. Being debatable invokes the possibility of delay due to objection to voting, cloture, etc.

On the possibility that my "there will be no conference" prediction is in error, one might review the details of precedence of motions relating to matters passing between the two chambers. This parliamentary procedure is described in Riddicks Rules: Amendments Between Houses.

While the debate on FISA is sure to generate some heat, I think the outcome is foregone. For purposes of this page, I'm thinking to insert vote results in the list above rather than create a running commentary. The substantive debate will be repetitive of points previously asserted.

--- Economic Stimulus Bill ---

Recovery Rebates and Economic Stimulus for the American People Act of 2008

WH Policy Statement (calls for passage without amendment)


Jan 31, 2008: S.Amdts. 3973-76, 78
Feb 5, 2008: S.Amdts. 3980-87
Feb 6, 2008: S.Amdts. 3989-4008
Feb 7, 2008: S.Amdts. 4009-11


Jan 29, 2008: Gregg - Harkin - Brown
Jan 30, 2008: Part I - Part II - Dorgan - Baucus
Jan 31, 2008: Part I - Cardin - Part III - Cloture - Part V
Feb 4, 2008: Part I - Part II (commingled with FISA)
Feb 5, 2008: Leaders (commingled with FISA) - Part III - Live Quorum - Schedule - Part VI (& FISA debate agreement) - Fill the Tree
Feb 6, 2008: Durbin - DeMint - Casey - Part IV
Feb 7, 2008: Corker & Part II - Menendez - Part IV


The parliamentary procedure for "take it or leave it," or "passing without opportunity for amendment," is "filling the amendment tree." Senator Reid followed this controversial method with "the farm bill," and with the "clay pigeon process on S.1639 - Comprehensive Immigration Reform."

I seriously doubt amendments will be frozen out. But that's what Senator McConnell is advocating on the economic stimulus bill - to pass the House bill unamended, because it's known the WH will agree with it unamended, and amending it introduces a risk of veto. It's essentially the same position taken with regard to FISA "modernization."

--- 14:10 ---

Whitehouse, Cardin and Feingold amendments to come up this afternoon. Senator Reid expects to finish the [FISA] bill tomorrow, voting on three amendments tonight.

Then, tomorrow morning, Dodd/Feingold stripping of Title II; Specter/Whitehouse substitution; and Feinstein's exclusivity amendment -- or whatever contentious amendments remain after tonight. He said there was no time agreement on the Feinstein amendment, but the clerk's record of the UC agreement (printed on the calendar) says 90 minutes. After contentious amendments are handled, he sees the path to passage as routine business.

He describes the economic stimulus package in general terms, with a focus on foreclosures and energy costs. He rants about the economy under the Bush administration, job creation mostly.

14:15: Senator Reid is going to bring a substitute amendment in place of the House economic stimulus bill, where the substitute contains material inserted by the Senate Finance Committee. He lists as one item it will include: LIHEAP. He's also anticipating a conference committee on this bill. I agree, there will be one for this, because there are a number of items that can be horse traded. The Senate bill is a "Cadillac package."

14:17: Senator McConnell touts the budget proposed by President Bush. Some back and forth between he and Senator Reid on the subject of the budget.

14:25: Senator Bond will be one of the floor managers. First amendment up is Whitehouse 3920. At 15:03, Senator Whitehouse reserved the balance of his debate time. I don't know if this is "effective," usually quorum time or other events are used to eat up debate time.

15:03: Next up is Feingold 3979. This is the sequestration amendment, the text of which will be in today's record, published tomorrow. [ Link to Text of S.Amdt.3979]

15:27: Senator Tester describes sequestration as a RETENTION of the acquired communications, but imposing additional showings by the government before the NSA could turn over acquisitions that do NOT represent foreign intelligence information.

15:39: Senator Feingold reserves the balance of time for debate on #3979.

15:59: Senator Rockefeller sets out a UC request for the 10 minutes ahead of the cloture vote on the motion to proceed to the economic stimulus package. And now he seeks clarification as to how time will be charged if/when Senators speak "as if in morning business."

16:02: Senator Cardin calls up #3930.

16:18: Senator Cardin "I understand the president would prefer no sunset to this legislation. Heck, he'd prefer there is no Congress!"

Senator Rockefeller again refers to parliamentary timekeeping issues, and asks consent to set the pending amendment aside so off-topic speeches can be made. There is no objection.

Senator Bond is against the sunset provision. He says its the responsibility of the Intelligence Committee to keep an eye on the legislation and fix it in a timely fashion. Where was the repair back in 2001? Why didn't the Intelligence Committee do its job and keep FISA in pace with technology?

--- Economic Stimulus ---

The cloture motion on the motion to proceed to H.R.5140 PASSED on a 80-4 vote.
Voting Nay: Coburn, Corker, Hagel and Shelby
Not Voting: Biden, Byrd, Chambliss, Clinton, DeMint, Domenici, Dorgan, Graham, Gregg, Kennedy, Kerry, Lieberman, McCain, Obama, Vitter and Wicker

18:02: Senator Reid (I'm coming in mid-rant) noting passage of the cloture motion on the motion to proceed to the economic stimulus package, and further noting that the GOP is insisting on 30 hours of debate before voting on the motion to proceed. "The GOP is filibustering." Well, if 30 hours constitutes insurmountable delay.

18:05: Senator McConnell - "If we do nothing tomorrow, it will be like Tuesday, Wednesday and Thursday last we when we couldn't get a vote." Ha. That takes balls, GOP objections was the reason amendments and votes didn't come up last week Tuesday , Wednesday and Thursday.

18:08: Senator Reid is calling McConnell out on last week's delays. The leaders are frustrated with each other. Reid brings up the delay on Indian Health Care and lays that at the feet of the GOP. "No, we had to work on the president's 'need to spy.'"

REID: So, no, we could not do anything on Indian health, we could not do it on the energy package, until we got an agreement on FISA. It is obvious what is being done here. The Republicans are trying on FISA to do what they did last August. Even though the President has been forced to extend this for 15 days, they now want to do what they did in August: Stall it until the last day so we are forced to do something here and send it to the House so the House has no time to do anything about it.

19:00: A procedural stalemate in hand, with the GOP insisting on 30 hours of post-cloture debate, and that time ostensibly for the motion to proceed to economic stimulus, the GOP wants to delay FISA and stay on the subject of economic stimulus. The DEMs have been pwnded. Here is the relevant UC agreement:

That at 5:30 p.m. on Monday, February 4, 2008, the Senate vote on the motion to invoke cloture on the motion to proceed to H.R. 5140. Ordered further, That the adoption of a motion to proceed to H.R. 5140 ... not displace any pending measures.

Oops. Forgot to handle the vote on the motion to proceed. The 30 hours of post-cloture debate can be addressed (cut out of the parliamentary process) by language in a UC agreement. E.g., insert:

... that if cloture is invoked, the motion then be adopted ...

There is always Saturday. Senator Reid stated that he's not opposed to voting on FISA amendments tomorrow, because, as far as he can tell, none of those votes are close.


Mr. DURBIN. Mr. President, I ask unanimous consent that following morning business Tuesday, February 5, the Senate resume the FISA legislation, then proceed to a vote in relation to the four amendments that were debated today, with 2 minutes between each vote equally divided, and that on the disposition of those amendments, the Senate continue to consider amendments in order to the FISA legislation and that all time consumed during that debate count postcloture.

Mr. KYL. Mr. President, for the reasons I expressed with the majority leader a moment ago in our colloquy [Senators absent from the Senate can't weigh in - this is a BS objection, UC agreements happen while McCain is on the campaign trail], I must object at this time.

20:45: Senator Sanders does not object to congratulating the NY Giants.

20:48: Senator Sanders adjourns the Senate until 10:00 a.m. tomorrow. An hour of morning business, followed by resumption of consideration of the motion to proceed to H.R.5140, economic stimulus package.

Senator Reid intends to ask consent to proceed to consideration of FISA, notwithstanding the pending motion to proceed to the consideration of the economic stimulus bill, and advises Senators to be available for roll call votes.

REID: ... tomorrow we can come in, people can talk about the stimulus package all they want, and set a time certain on Wednesday to vote. That would save me having to file cloture on it either tonight or tomorrow night, which will happen. If I file it tomorrow night, the vote [cloture vote to limit debate before final passage of the stimulus package] will have to be on Thursday.

February 5

From today's Senate legislative calendar, the term of art is "unfinished business."

                            UNFINISHED BUSINESS
                                . . . . . . .

                        UNANIMOUS CONSENT AGREEMENTS
                          H.R. 5140 (ORDER NO. 566)
       1.--Ordered, That on Tuesday, February 5, 2008, upon the conclusion
   of Morning Business, the Senate resume consideration of the motion to
   proceed to H.R. 5140

"Order No." is a reference to a unanimous consent order. Order No. 566 has morphed radically from its printing in the February 4 Senate legislative calendar. Order No. 566 no longer recites "That the adoption of a motion to proceed to H.R.5140 ... not displace any pending measures." Taken on its face, the current order nominally puts the entirety of handling H.R.5140 ahead of resumption of FISA -- the adoption of the motion to proceed to H.R.5140 could displace the previously pending FISA debate. I say "nominally," because UC and leader prerogative give wide latitude to choose which bills will be pending, and the order of taking them up. See S.1200, the Indian Health Care bill, which is also listed as "Pending," but which is obviously set aside and is obviously unfinished. The power of individual Senators is to slow, delay, and force 60 vote margins in the context of the bills and amendments put before them.

Feingold 3915 (empowers FISC to issue orders to enforce FISA "targeting" provisions)
Cardin 3930 (4 year sunset)
Feingold 3979 (sequestration)
Whitehouse 3920 (FISC given discretion to review compliance with its orders)

I think Senator Durbin's prediction that today will be a "wasted day," time filler, no votes on FISA, etc. is correct. The GOP is objecting to acting, as they have the right to do.


And now, a brief partisan political comment. GO ROMNEY!

I have a few thousand positions at TradeSports (in the play area, not breaking the Federal Nanny law that protects state and state sanctioned gambling (and the Vegas mob) forbids online gambling), bought at 7.4, that Romney will be the GOP nominee.

[12:15 note: Rush Limbaugh is reading Dole's "endorsement," and outs McCain as a liar. Again. Heheheh.]


At HowAppealing: "Lawyers Fighting D.C. Gun Ban Argue Against Militia Focus," including a link to the brief for Heller. The brief calls for review to be conduced under "strict scrutiny." The standard of review advocated by the administration is "rational purpose." It's a good brief. I'll convert to plaintext on request.

Finally, there is no logic to Petitioners' extraordinary claim that gun control "is the most important power of self-protection" for the seat of government. Pet. Br. 38. The District Clause, after all, allows Congress to "[erect] Forts, Magazines, Arsenals, dockYards and other needful Buildings." U.S. CONST. art. I, § 8, cl. 17. Congress surely has the power to regulate firearms in Washington; but if Congress felt that disarming Americans at home were necessary for its security, it might have attempted to do so in the first 177 years of the city's service as the seat of government. As recent history demonstrates, those who would attack our capital are hardly deterred by Petitioners' ban on handguns and functional firearms in the home.


At SCOTUSblog: "U.S. plans swift new appeal on detainees," on the confluence of the Boumediene and Bismullah cases in the Supreme Court. Also ...

Some briefs are coming due in the Circuit Court in the pending detainee cases there, and the government said it needs to delay those filing deadlines while it moves to the Supreme Court with the new test case in the Bismullah/Parhat litigation.

-- 10:05 --

Senator Reid asks UC to be recognized after the hour of morning business.

Senator McConnell says the public probably wonders why Congress is still debating economic stimulus. He is advocating passing the House bill unamended.

Same old finger pointing routine.

Senator McConnell is counting on public confusion regarding the difference between a cloture motion on a motion to proceed, and a cloture motion on passing a bill. The GOP is stalling the taking up, on the basis of not having read the bill -- but see myriad occasions where complex bills and amendments are taken up and sometimes passed -- the typical place to object to the contents of a bill (especially as unknown) is AFTER it is taken up, and before the vote on adoption.

Senator Reid calls the Bush administration "Orwellian." And later says that McConnell is also speaking in Orwellian tongue. I notice that Reid's characterizing of a McConnell argument as "shallow" appears in the Record, as is his apology for using that word, and his statement that he would ask to have that stricken.

10:41: Senator Cornyn is saying that delay in voting is due to Democrat objection. He wonders why the House version of economic stimulus isn't just taken up and passed, given the 80-4 vote yesterday. Heheh. It's not being taken up, because the GOP objects to voting on the motion to proceed. He too is counting on public confusion on the difference between "motion to proceed" and "vote to adopt." The public hears "cloture" and LEAPS to the conclusion, "on a vote to adopt the bill."

-- 11:35 --

11:21: Senator Reid comes to the podium at the conclusion of morning business, and suggests the absence of a quorum.

11:24: He opens with a recapitulation of last evening's tit-for-tat, particularly on the economic stimulus package out of the Finance Committee.

11:32: Reid asks to conduct a cloture vote on the Finance Committee bill on Wednesday at 6:00 p.m. Senator McConnell asks the request be modified to proceed to "the bill" today. He also asks for consideration of a GOP alternative amendment. Senator Reid is trying to protect Clinton, Obama right to be present for votes on economic stimulus. I'll have to replay and study the UC requests in more detail before giving some sort of informed summary.

11:37: Reid just made a "live" quorum call. The Senate has the right (duty, actually) to compel attendance if a quorum is not present to conduct business. See Senate Rule VI for the procedure.

11:59: Motion to instruct attendance passed 73-12. That's 15 absent Senators. Senator Reid says (again) he will file a cloture motion on the Finance Committee's bill. If conducted under the rules, that vote will be Thursday morning, unless the GOP agrees to take that vote sooner. [Where is the cloture motion on final passage of the FISA Bill? Search Congressional Record - since Jan 31]

He requests the Senate proceed to debate FISA today. There are 6 hours of debate scheduled on Title II, and there is no reason to not conduct that today. He would like to vote on the 4 amendments currently pending as well. He asks UC to take up FISA and vote on the amendments in order, with votes to be scheduled on consent, and time consumed to be charged also against the 30 hours of post-cloture time under the debate on the motion to proceed on economic stimulus.

Senator McConnell admits the GOP is using delay on FISA as a lever to obtain ground on the economic stimulus bill, and objects to debating and voting on FISA, i.e., on the grounds that the DEMs haven't given assurances as to how the economic stimulus package will be presented to the Senate.

I think the point has been well made by the 49 Republican Senators over the last year or so that our rights are going to be respected; that we are going to move forward on bipartisan bills, such as both of these, in a way that is respectful to both sides, and as soon as we have an understanding about how we are going to go forward on the stimulus package, then we will be able to make progress on this bill.

12:30: The Senate is in recess until 14:15. The focus on advancing the economic stimulus package, in combination with an ABSENCE of a PLANNED cloture motion to conclude debate on FISA and move it to final passage, indicates to me that both parties are in on a plan to delay passage of FISA, so as to limit the amount of time the House has to debate it, and to create a fiction that will feed the story line, "not enough time for a conference." As discussed above, conference was out anyway, and the two chambers usually resolve differences WITHOUT a conference. The fiction has one function -- to bamboozle the public. Sad to say, it works, it works ggggrrrrRRRRREAT!

FISA, on a fast track, would have been passed tomorrow. On a regular track, it would pass Thursday morning. If a cloture motion on final passage had been filed yesterday (so its ripening would coincide with conclusion of debate on amendments), that cloture vote would have been on Thursday morning. If Dodd or Feingold insisted on 30 hours of post-cloture debate from there, FISA would pass, at the latest, Friday afternoon.

Well, there's no cloture motion, progress is not on a fast track, not on a normal track, and not on a track that accounts for the possibility of insistence on 30 hours of post-cloture debate on final passage of FISA. In fact, I've not heard or found any mention whatsoever, that involves the filing of a cloture motion to limit debate on final passage of FISA. [Search Congressional Record - since Jan 31]

In hindsight, another tell that "delay is being wrought by both parties in the Senate" is Reid's "error" in saying there is no time agreement on the Feinstein amendment, but that the Senate will "work through that." He's telegraphing yet another potential excuse for not passing FISA out of the Senate this week.

Finally, the erasure from the UC agreement (#566), of "motion to proceed to HR 5140 will not displace any pending measures," with that erasure coming out of sight of floor action (but sure as shooting being visible in the legislative calendars) is a tell that the Senate may well keep HR 5140 on the floor once the motion to proceed to it has been adopted. In short, it's permissible under the modified UC, for adoption of the motion to proceed to HR 5140 to displace FISA. That was not possible under UC #566 as originally entered into.

That's my reading of tea leaves -- subject to being in error, of course.

-- 15:10 --

Debate today is persisting on economic stimulus. Senators Rockefeller, Murray and Mikulski spoke on the subjects of the economy and President Bush's budget.


A thought-provoking article at National Security Advisors: Do We Already Have a "National Security Court"? - Steve Vladeck. The article probes the terms of the Military Commissions Act, its personal and subject matter jurisdiction, and asks (without analysis) good questions about potential constitutional ramifications.

-- 16:15 --

Senator Reid has been waiting for an hour for a Republican to come to the floor so he can offer a UC request. The UC request is to offer amendments for debate, but not to have votes. Senator Reid says that President Bush has issued a veto threat on the FISA bill, today (actually, the letter comes from Mukasey and DNI McConnell). He doesn't offer the UC request. Other than the letter from Mukasey and McConnell, says Reid, he's heard nothing from the Republicans on the FISA subject.

--- FISA ---

16:19: Reid's speech pried Senator McConnell out. Senator Reid propounds his UC request to take up S.2248, and to take up and debate several amendments (Feingold 3912, Feingold 3913, Feingold/Dodd 3907). Senator McConnell will agree with taking up and debating these amendments. He says that a majority of the GOP caucus would like to have been voting on FISA amendments today. He rejected exactly that request, this morning.

16:50: The Senate resumes consideration of FISA with Feingold's No. 3913. It's generally on the subject of "reverse targeting."

16:56: Senator Feingold reserves his time on #3913, and calls up amendment No. 3912. This is generally on the subject of "bulk collection" of communications.

17:25: Senator Dodd calls up amendment No. 3907, indicates that he intends to use only 10 or 15 minutes of that time then reserve the balance of his time for tomorrow. This amendment bumps directly into a veto threat that came out about the same time the demand for retroactive immunity was announced, April 2007..


Veto Threat for Proposed Spy Laws - Lara Jakes Jordan (AP)

"It is for Congress, not the courts, to make the public policy decision whether to grant liability protection to telecommunication companies who are being sued simply because they are alleged to have assisted the government in the aftermath of the September 11th attacks," Mukasey and McConnell wrote.

Nothing about the privacy statute, and nothing about repealing the privacy statute on a forward-looking basis. Shouldn't "assisting the government," regardless of the government request and any countervailing statute, result in absence of legal recourse?


17:55: Senator Bond rebuts, then moves to introduce amendments 3938 and 3941 as modified. A brief interruption as Senator Cantwell is being given 15 minutes to speak on an unrelated subject. The Senate returns to debate of FISA at 18:13.

Senator Kyl has today's letter from Mukasey and DNI McConnell entered into the Congressional Record. Marcy Wheeler is hosting a PDF rendition at FISA Debate Liveblog. Quorum call starts at 18:24 with no time charged to FISA. The 30 hour post-cloture clock is still running against the motion to proceed to economic stimulus.

--- Economic Stimulus ---

19:04: Senator Reid asks for the vote on the motion to proceed to HR 5140. The motion was adopted on a voice vote. He asks for the consideration of S.Amdt.3983, and asks for the yeas and nays. He files a cloture motion to limit debate on S.Amdt.3983. He then calls for S.Amdt.3984, to "fill the tree." He then moves to commit the bill to the Committee on Finance, with instructions to report back forthwith with an amendment #3985, he asks for yeas and nays on this, an amendment #3986 to the instructions of the motion to commit, and finally amendment #3987. That means he's just filled the tree on all avenues for disposing of the bill or modifying the Finance Committee substitute amendment, including a cutting off the method of motion to commit to committee.

He asks for H.R.4150 to be brought up at 4:30, and the cloture vote on S.Amdt.3983 to be conducted at 5:45 p.m. tomorrow.

Senator McConnell asks for a revision to the UC, involving a route of parliamentary procedure (proceed to vote on the McConnell amendment, then vote on final passage of HR 4150) in the event cloture is not invoked on the Finance Committee substitute. Reid objected. Then there was no objection to taking up HR 4150, and conducting the cloture vote to limit debate on S.Amdt.3983 at 5:45 p.m.

19:10: S.2457 is discharged from committee, amended, and passed on UC.
S.Res.434 - designating Feb 10-16 as Natl Drug Prevention and Education Week.
S.Res.443 - designating Feb 2008 as "Go Direct Month."

A few closing comments, focused on the stimulus package. He also names GOP Senators who should support the Finance Committee Bill, against GOP party orders. McCain because his vote is important to reduce reliance on foreign energy and combat global warming. Grassley too, for different reasons.

19:23: Senate adjourned until 9:30 - an hour of morning business - then resume consideration of FISA. Roll call vote at 5:45 on the cloture motion to limit debate on economic stimulus. He indicates there is no formal agreement on FISA just yet. While he has assurances from Senator McConnell that certain amendments may be brought up for debate, the only thing Reid expressed regarding taking votes on FISA-related amendments was his personal "hope." I note, again, the absence of a cloture motion to limit debate on final passage of FISA. FISA will be slow walked through the weekend (and maybe beyond), I think.

Once started, the Senate will be inclined to stick to HR 4150 until it's disposed of. The only agreed FISA-action tomorrow is debate, and that from 10:30 to 4:30. There is no agreement to vote on FISA amendments. Once the economic stimulus package is under hot debate, and if cloture is invoked to limit debate on economic stimulus S.Amdt.3983, the GOP will insist on staying with the 30 hours of post-cloture debate on S.Amdt.3983. FISA will be set aside until economic stimulus is completed.

On balance, this week will turn into economic stimulus week if the economic stimulus cloture motion is adopted. Very good sleight of hand by both parties!

February 6

Those Romney futures at TradeSports have tanked, bigtime! They're in the same range as Huckabee's futures.

Congratulations, President-to-be Hillary! Clinton. Meanwhile, I hold hope of an uptick in the value of Romney futures, mindful that public opinion is fickle, and fate is rarely predictable.

Beldar has a well written analysis, supporting a vote for McCain. Are we at war? And what is the political consequence of that for conservatives in this election?. I managed to post the first comment. I won't vote for McCain, WOT or no WOT.


Lifted verbatim from the Daily Digest, nine of twelve amendments have been introduced and are pending (3911 is essentially the bill) ...

  • Rockefeller/Bond Amendment No. 3911, in the nature of a substitute.
  • Whitehouse Amendment No. 3920, to provide procedures for compliance reviews.
  • Feingold Amendment No. 3979, to provide safeguards for communications involving persons inside the United States.
  • Cardin Amendment No. 3930, to modify the sunset provision.
  • Feingold/Dodd Amendment No. 3915, to place flexible limits on the use of information obtained using unlawful procedures.
  • Feingold Amendment No. 3913, to prohibit reserve [sic] targeting and protect the rights of Americans who are communicating with people abroad.
  • Feingold/Dodd Amendment No. 3912, to modify the requirements for certifications made prior to the initiation of certain acquisitions.
  • Dodd Amendment No. 3907, to strike the provisions providing immunity from civil liability to electronic communication service providers for certain assistance provided to the Government.
  • Bond/Rockefeller Modified Amendment No. 3938 (to Amendment No. 3911), to include prohibitions on the international proliferation of weapons of mass destruction in the Foreign Intelligence Surveillance Act of 1978.
  • Bond/Rockefeller Modified Amendment No. 3941 (to Amendment No. 3911), to expedite the review of challenges to directives under the Foreign Intelligence Surveillance Act of 1978.

The text of amendments "as modified" is included in debate from February 5. The full text of the February 5 letter from AG Mukasey and DNI McConnell also appears at that link.

There are two general scenarios for pushing the vote on final passage "out." One is propounding a UC request that includes voting at a time certain (at objection, Reid would file the overdue cloture motion), the other is to just have H.R.5140 overtake action on the floor. While there is agreement to limit debate time on FISA bill amendments, the ability to take up H.R.5140, actually, now a unanimous consent agreement with a time certain to do so, results in a situation where voting on FISA does NOT naturally follow the conclusion of debate on FISA.

Debate on amendments to the FISA bill is scheduled from about 10:30 until 4:30 p.m., at which time the Senate will switch gears into economic stimulus legislation.


On economic stimulus, the proposed statutory language is Reid's S.Amdt. 3983. This is a full substitute amendment for H.R.5140 ("Strike all after the first word and and insert the following"). This has been represented as generally the bill as reported out of the Finance Committee. I haven't compared the two competing measures (House-passed H.R.5140 and S.Amdt.3983).

S.Amdt.3983 is being presented as a "take it or leave it" bill. The cloture vote will account for that. Recall the objection to passing FISA on a take it or leave it basis? The primary justification for objection was that it deprived the senators of their right to debate amendments. (See also farm bill debate and rejection of cloture to limit debate on S.Amdt.3500, "the farm bill," for exactly this reason). I think the "we can't amend" objection will be muted in the context of economic stimulus, and that cloture will be invoked on the economic stimulus amendment.

-- 9:42 --

Senator Reid says it will be a big day, with "three presidentials voting at 5:45." He indicates that roll call votes may occur during the day (those would be on FISA amendments). He says that the current top priority of Congress is the economy, and speaks in favor of the changes the Finance Committee has made: money to seniors, LIHEAP, extending unemployment benefits, federal mortgage guarantees.

Senator McConnell speaks on yesterday's storms and the damage they wrought.

9:45: Senator McConnell indicates an alternate path, one involving failure to adopt the cloture motion this afternoon, the risk of veto from President Bush, and deviation from the Finance Committee bill. He advocates revisions to the House-passed H.R.5140, that provide checks from the federal treasury to disabled veterans and senior citizens, and eliminate the possibility of illegal immigrants getting checks. He will file an amendment in that vein, that could be adopted if the Reid amendment is not passed.

President Bush: "I send greetings to those celebrating the Lunar New Year, the Year of the Rat."

11:05: Morning business has expired. The Senate is formally on S.2248. Senator Hatch spoke (in morning business) against Feingold's "reverse targeting" amendment, and Senator Rockefeller now uses debate time to speak against Feingold's "bulk collection" amendment.

12:00: Senator Reid took the Senate into the subject of nominations, and absence of confirmations. More finger pointing. The DEMs are being disingenuous here. If Bradbury is objectionable, then vote the nomination down. Should be a piece of cake for the Democrats.


Andy McCarthy recommends that Senator McCain make FISA a highlight of his campaign, "May I Offer Sen. McCain Some Advice?"

Sen. McCain should be calling [Hillary! and Obama] out. He should become the face of FISA reform, forcefully argue why we need [retroactive immunity] so badly, and shame the Democratic candidates into taking a clear position. Assuming they side with their base, McCain will have graphically shown in a very concrete way that it would be irresponsible to put one of them, rather than him, in charge of protecting the nation.


12:27: On the Senate floor, Senator Session intends to get back to the FISA subject, but first rebuts Senator Durbin's speech about waterboarding and objections to confirm Bradbury's nomination.

I object to the characterization made by Senator Sessions, that the Senate considered an amendment to prohibit waterboarding, and rejected it. See S.Amdt.5088, which recites:

The Secretary of State shall notify other parties to the Geneva Conventions that-- should any United States person to whom the Geneva Conventions apply be subjected to any of the following acts, the United States would consider such act to constitute a punishable offense under common Article 3 and would act accordingly. Such acts, each of which is prohibited by the Army Field Manual include forcing the person to be naked, perform sexual acts, or pose in a sexual manner; applying beatings, electric shocks, burns, or other forms of physical pain to the person; waterboarding the person; using dogs on the person; inducing hypothermia or heat injury in the person; conducting a mock execution of the person; and depriving the person of necessary food, water, or medical care.

I opined, when it was offered, that the amendment was tactically stupid as a means to forbid waterboarding. Not only did it bundle a number of activities, it also doesn't forbid anything. It aims to compel the Secretary of State to communicate with foreign nations. Now that amendment is frequently touted as standing for the proposition that "the Senate considered an amendment to forbid waterboarding, and rejected it."


On a totally different subject, here is Senator Smith of Oregon showing up in the Congressional Record, without speaking from the floor, eighteen times!! The Matthew Shepard Act of 2007.

--- FISA ---

A speech from Senator Chambliss on retroactive immunity, then into quorum call at 13:06.

The Specter/Whitehouse (substitution) and Feinstein (change venue) amendments, each of which is accorded two hours of debate, have not been made pending. Nor has Feinstein's "exclusivity" amendment. With economic stimulus to become the business of the Senate at 4:30 (by unanimous consent), it's fairly clear FISA will not obtain a vote today.

13:35: Senator Isakson takes the Senate out of quorum call, and into the subject of economic stimulus. Senator Reed (RI) picks up at 13:42, speaking in morning business at on the subject of the economy.

13:55: Senator Hutchison takes the floor. Senator Bond negotiates division of time between FISA and morning business. Senator Hutchison start to beat the "looming deadline" drum. She also asserts the telecoms are at risk of catastrophic liability awards. (Yaaaaawn)

So, explain to me how the SSCI bill, which allows the government to be sued, is GOOD, but substituting the government for the telecoms is BAD. Throw up all sorts of arguments, and see which ones stick.

Senator Hutchison is speaking very haltingly, as though she doesn't understand, or else lacks conviction in the positions she's advocating.

14:16: Senator Rockefeller takes time on the underlying bill. There is no time limit here. He advocates rejection of all three amendments that deal with retroactive immunity. Senator Specter is scheduled to present the "substitution" amendment at 3:30 this afternoon. Senator Rockefeller concludes his speech at 14:39.

14:58: Senator Feinstein rises to introduce here "exclusivity" amendment, #3910. She describes negotiations with other Senators regarding amending her amendment, which ultimately she could not agree to. She is willing to provide a 30 day exception from the exclusivity requirement.

She also causes her "venue change" amendment #3919, to remove cases from civil courts to the FISC, to be pending. There is no debate, just making the amendment pending. She concluded at 15:03.

15:04: Senator Cardin notes that his amendment (4 year sunset) will obtain a vote, soon. I'm not going to bate my breath. 15:15: Well I'll be dipped. Voting begins on Cardin's "4 year sunset" amendment.

Vote results will be posted in the "list of amendments" at the top of the page.

15:42A praise ceremony for Senator Inouye on the occasion of his casting his 15,000th vote. Ceremony ends at 16:03, and the Senate enters quorum call.

16:07: Senator Specter calls up Specter/Whitehouse S.Amdt.3927 (substitution). He notes two hours are set aside to debate this, but there are 24 minutes of time before the Senate moves to economic stimulus.

16:28: Rockefeller - "In spite of my eloquence, I can't address this amendment in 2 minutes." Bond - "The bipartisan [SSCI] bill permits suits to go forward against the government and government employees; the Congress [Intelligence Committee] was notified; the president has Article II powers to conduct the surveillance."

16:30: The Senate moves to economic stimulus.

-- 18:11 --

The cloture motion on the motion to limit debate on the Finance Committee economic stimulus package (S.Amdt. 3983), on a take-it-or-leave-it basis, was REJECTED, on a 58-41 vote.
GOP Aye votes: Coleman, Collins, Dole, Domenici, Grassley, Smith, Snowe, and Specter
Not voting: The maverick.

Senator Reid changed his vote to Nay, in order to enter a motion to reconsider, and did enter a motion to reconsider. The cloture motion essentially came one vote short, not two.

Senator Reid will discuss debate and vote agreements for the near future with Senator McConnell, and suggests the absence of a quorum.

19:33: The Senate stands in recess until 10:30 a.m. tomorrow. No announced details for legislative action, but Senator Reid will be recognized at 10:30.

Closing Minutia:

  • H.R.3541 - A bill relating to the Do-not-call registry, was passed on UC.
  • S.2596 - A bill to rescind funds appropriated by the Consolidated Appropriations Act, 2008, for the City of Berkeley, California, and any entities located in such city, and to provide that such funds shall be transferred to the Operation and Maintenance, Marine Corps account of the Department of Defense for the purposes of recruiting
  • Injunction of secrecy removed from treaty document 110-14 - International convention against doping in sport, read the first time and re-referred to the Committee on Foreign Relations

February 7

Trivia: Having gone into recess instead of adjournment, calendar day Feb.7 is legislative day Feb. 6.

On the subject of economic stimulus, see S.Amdts. 3989-4008. Tax code makes my eyes glaze over, but economic stimulus lies in federal tax code.

On the subject of FISA, there has still not been a cloture motion to limit debate on final passage.

Neither bill is poised for passage this week. I presume the discussion starting at 10:30 this morning will include some scheduling clues, as well as a scripted exchange on the substantive negotiations relating to the economic stimulus proposals.

-- 10:34 --

Senator Reid indicates that there is no mutually agreeable way forward on the stimulus package, but negotiations are ongoing. He says that FISA must finish this week. He hopes to have FISA finished today, if not today, then tomorrow. FISA has to be finished this week, says Reid. [Where's the cloture motion that would insure voting on final passage "at a time certain"?]

It would be good if economic stimulus was completed today, but may stretch out to next week Tuesday, due to [parliamentary] procedural issues (i.e., somebody may use stalling to apply pressure). He indicates the importance of passing an economic stimulus package soon, because we are in economically troubled times, including national and international "fear" of inflation. Into quorum call, Senator McConnell is not in the chamber.

10:45 Senator Corker notes that Congress spending 150 billion dollars is more for political effect than economic effect. Yup. True that. Buying votes. Sending back money the government never should have extracted in the first place? Or borrowing money, with the public to pay it back (future taxation) later?

He says a majority of Senators know it is a political stunt. Say it isn't so! Well, he's one out of 100.

10:54: Senator Mikulski - "our dollar is worth a box of kleenex." Ha. And a fifth of milk too. She's frustrated with the Senate and parliamentary procedure, insomuch as it's slowing passage of the economic stimulus package. Cry me a river. Jobs leave states and the US when costs and regulatory burdens are lower elsewhere. Get a clue.

Hehe. She says "one vote stands in the way of passing economic stimulus." Must be Corker. Either that, or she's referring to last evening's cloture vote being one short of adoption.


Tapegate slogs on, in yet another venue (Brinkema's court, not Kennedy's or Roberts'). "C.I.A. Destroyed Tapes as Judge Sought Interrogation Data" - NYT

More at JURIST: Moussaoui prosecutor may have known about CIA interrogation tapes during trial


In the "I told you so" department (See "Establishing Military Commissions" at 16:27 on Sept 28, where I said, "Contrary to McCain's prevaricating, waterboarding and stress positions are permitted. Read the statute, it's in there in relatively plain language. Interrogation is permitted to the extent it does not violate 18 USC 2340(2) or 18 USC 113."), the White House utters the same conclusion: "Waterboarding is legal, White House says - LA Times.

A good question from the press (for a change) in Press Briefing by Tony Fratto - February 6, 2008.

Q Just to clarify, so you're saying that it's not torture and you're saying it's effective -- then why is it not currently authorized, waterboarding?

Director Hayden, in testimony today, says he's not sure waterboarding would be lawful under current statutes. "CIA Boss: Waterboarding May Be Illegal" - Lara Jakes Jordan (AP)

Hayden said waterboarding was legal in 2002 and 2003


12:30: Quorum call/recess No debate or voting on FISA, yet today. Also, no reason given for delay. Odd, in light of the hard-fought UC agreement of a week ago; and the universal expression by all sides of the urgency of passage.


Romney to suspend his campaign. So much for an uptick in those futures I'd "invested" in. Good thing it was only play money!

Romney speaking at CPAC - he accounts: his 4 million votes to McCain's 4.7 million, his eleven states to McCain's thirteen, but McCain has a substantially greater number of delegates. Romney is stepping aside for the good of the country, says he, because the Democrats can't be trusted to prosecute the war in Iraq, and the war on terror.

Good tactical move by Romney, looking past 2008 and toward 2012. If McCain is nominated, and loses in November, 1) it's not Romney's fault, and 2) Romney didn't lose a presidential election.

Audio of Romney speech
Audio of McCain speech

14:24: CSPAN2 indicates that the DEMs and GOP have reached an agreement on economic stimulus, likely to pass today. The deal is essentially the language that McConnell offered yesterday. All players (except Corker) are jiggy with it.

-- 14:45 Economic Stimulus --

Senator Reid sets aside FISA, and introduces an amendment on economic stimulus. 20 minutes of debate on S.Amdt.4010, followed by votes, with the time of voting to be determined later (Senators are out and about the town). Senator McConnell adds himself and others as co-sponsors. Glorious bipartisanship.

Easy passage guaranteed.

14:55: Senator Reid requests adding an amendment that extends unemployment benefits. Senator Gregg objected. Pandering for the unemployment vote. A similar exchange occurs with a LIHEAP amendment. The same exchange with an energy-tax-credit amendment. A similar exchange occurs with an amendment that adds mortgage-revenue bonds for states. A similar exchange with a food stamp amendment.

That's it for populating the Record with pander points. Short period of debate, then either vote or quorum call.

Voting scheduled for 4:10 p.m, with time divided equally between the two sides. Time allocated to certain named senators.

The Democrats are pointing out that they needed only ONE more GOP vote, in order to get the items they wanted in the economic stimulus package. Senator McCain, I think they are calling you.

16:36: Reid/McConnell S.Amdt.4010, negotiated economic stimulus, was PASSED on a 91-6 vote. [98-1 initial prediction]
Nay votes: Allard, Coburn, Corker, Craig, Gregg, Hagel
Not voting: Clinton, Obama, Nelson (NE)

16:54: H.R.5140, economic stimulus, was PASSED on a 81-16 vote. [96-1 initial prediction]
Nay votes: Allard, Barrasso, Coburn, Corker, Craig, Crapo, DeMint, Ensign, Enzi, Gregg, Hagel, Inhofe, Kyl, Murkowski, Sessions, Shelby
Not voting: Clinton, Obama, Nelson (NE)


Senator Reid announces a plan on FISA, three recorded votes, and two voice votes on FISA. There is still a significant amount of debate time remaining on FISA, about 6 hours, debate will run until Monday, with a vote on final passage sometime on Tuesday. He mentions the cloture vote as well. With the time constraint, the House has to work quickly or the law will expire.

Senator McConnell agrees with the general timing. Senator Reid indicates there will be two roll call votes, not three. Senator Dorgan asks about the Indian Health Care Improvement Act, and says he thinks it can be finished in one day. Senator Reid suggests that the Indian Health Care bill be debated tomorrow or Monday. I take this as another tell that the plan all along, regarding FISA, was to push final passage into next week. The past couple days included over 6 hours of quorum call, etc., and could have been used to complete debate.

17:11: The first FISA amendment up for completion of debate is Feingold's 3915, "use limits" of data.

Feingold's 3915 and 3913 to be voted on this evening.

18:37: In recess again, until 9:30 tomorrow.

February 8

On the convergence of the Boumediene and Bismullah/Parhat cases, read SCOTUSblog: Detainees resist any more delay. The procedural posture is a government request to stay an order of the Circuit Court (the same order that remains standing as the Circuit Court denied rehearing en banc), pending appeal of that order to SCOTUS.


Not counting, but how many times did we hear that the economic stimulus bill was destined for a House/Senate conference? Keep an eye out for that conference. Ha!

The House agreed to the Senate amendment to H.R. 5140, Recovery Rebates and Economic Stimulus for the American People Act of 2008.

Corker's speech is at 1. Stimulus Package. It's an exceptionally good speech (and I admit my bias as being in accord with his point of view).

... I find it truly hard to believe there is such a rush in this Congress to take $150 billion and sprinkle it around America as if we feel that is going to do something to stimulate our economy.

I know that much of this--again, I am not saying by any measure this relates to every Senator, but I know much of this is politically motivated, to make sure people in our country think we are doing something, even if it is wrong. I know this is an election year. In some ways, to some constituent groups, this might build political favor. I certainly have not had private conversations with every Senator, so that should be noted. But I have to tell my colleagues, in private, I have not found one Senator--not one--who believes what we are getting ready to do is going to do anything to stimulate this economy. Again, economists around the country are mentioning the fact daily that this will have little or no effect. ...

I will close with this, and I said this the last time I spoke. There are children all over America today in classrooms. We have some who got up this morning who are in front of us--our pages--at 5 in the morning and went to class at 6. They come here every day and work with us. They are looking to their parents, their teachers, their coaches, their Sunday school teachers to help teach them life principles and to help make decisions that hopefully will cause their lives to be more whole and more full, and hopefully from time to time they look to those of us in Washington to do the same--their elected officials.

I hope, and I say this with all due respect to the Members in this body who have a different opinion--this is solely my opinion, and I have deep respect for the other 99 Members of this body, but from my own personal vantage point, I hope they are not looking at us this week. I do not think there are many Members in this body who believe this $150 billion these young people and their children will pay back is being spent in a meaningful way. I think many Members of this body realize this is an election-year stunt, if you will, to make it look as if we are addressing a problem when, in my humble opinion, we are not.

I think the children should look at the legislators ALL THE TIME. So should the adults, but that's another problem. Senator Corker should WANT the children to see crass political actions for what they are. Children's learning shouldn't be limited to learning good by observing good, but should include learning street smarts by observing skilled con-men in action.

The lesson, children, is that the decisions Congress makes are in Congress's interest, reelection and maintaining a grasp on the reins of power. Sometimes those interests are in your favor, other times they are not.


From the legislative calendar, here are the modified sections of the UC agreement that pertain to FISA and floor action leading to its passage:

  • on Friday, February 8, and Monday, February 11, 2008, all remaining amendments be debated and all time used.
  • on Tuesday, February 12, 2008, at a time to be determined, the Senate proceed to vote in relation to the amendments in an order specified later, with two minutes of debate prior to each vote ...
  • upon disposition of all amendments, the Senate vote on the motion to invoke cloture on S. 2248 [cloture motion hasn't been filed yet]
  • if cloture is invoked on the bill [it will be, easily],
    • the Senator from Connecticut (Mr. Dodd) be recognized to speak for up to 4 hours [this is a courtesy time extension, Rule XXII limits an individual senator to one hour of post-cloture debate]
    • the Senator from Wisconsin (Mr. Feingold) for up to 15 minutes; provided further,
    • recognition of the Managers [Rockefeller and Bond] for up to 10 minutes each,
    • the Senator from Vermont (Mr. Leahy) and the Senator from Pennsylvania (Mr. Specter) for 20 minutes each,
    • the Senate then proceed to vote on passage of the bill, as amended, if amended
No votes today -or- Monday, only debate. Typical Senate schedule on an urgent matter. The cloture motion intended to be voted on Tuesday is timely filed, if filed today. Tuesday will be stacked vote day, followed by speechifying, followed by passing the bill in basically the DNI-prescribed form.

Too, so much for "All Senators should know that we have to finish FISA this week. Hopefully, we can finish it today and, if not, tomorrow. We have to finish it this week." Ummm, I guess not.

-- 9:35 --

Senator Reid recapitulates no roll call votes today or Monday, but that 8 hours of debate remain. He gives no clue as to Senate business following, only that there are numerous recesses and work periods, and "lots to be done." He asks that senators wishing to speak alert the staff in advance, so the staff doesn't have to remain in the chamber.

Senator Bond speaks in terms of getting approval from the House - which I take as excluding conference negotiation.

09:54: I've heard some cockamamie arguments over the years, but the one that failure to immunize telecoms from civil process for snooping will result in them being subjected to increased risk of terror attack is particularly lame. Infrastructure is always a target, and its a good bet that terrorists view all the US telecoms as being in cahoots with the government.


President Bush Discusses Pending Presidential Nominations - Feb 7, 2008.

The Senate has sat on these nominations to the Court of Appeals for nearly 600 days. And in some cases, the Senate has imposed a new and extra constitutional standard, where nominees who have the support of the majority of the Senate can be blocked by a minority of obstructionists.

I'd make a minor adjustment to that. The Senate (thanks in large part to Senator McCain and his Gang-of-14 (buttheads)) has imposed the minority obstruction standard on ALL nominees. That it isn't exercised for some nominees simply means those nominees enjoy adequate supermajority support.


12:12: Senator Sessions wrapping up a speech expressing concerns about Russian activities, including facilitating Iran's intentions and military capabilities.

12:28: After a 5 or 10 minute Quorum call, Senator Sessions returns and speaks of US interrogation practices in general, that only one prisoner has been killed by US forces, and about waterboarding in particular. He's impressed that that waterboarding is rare, and discontinued for 5 years, and disparages those who talk of waterboarding as though it was or is a pervasive practice.

Waterboarding - it works, says he.

So I believe the Attorney General of the United States, after researching this matter carefully, and after our intelligence agencies gave it thoughtful review, concluded we do not need to have waterboarding now, that these three instances were justified.

-- 13:00 --

Senator Reid files the cloture motion to limit debate on final passage of S.2248. He asks and obtains UC, that notwithstanding the time periods in Rule XXII, the cloture vote occur on disposition of the amendments per the previous UC order. All that chatter is mere formality to coordinate cloture actions withing the earlier agreement.

Four Resolutions read and passed:
S.Res.432 - Urging International Community to provide the United Nations African Mission in Sudan with Utility and Tactical Helicopters
S.Con.Res.67 & 68 Establishing Joint Congressional Committee relating to inaugural ceremonies
H.Con.Res.273 - Recognizing 50th Anniversary of The National Academy of the Recording Arts and Sciences

Three bills read for the first time (second reading objected to):
S.2615 - to extend the PAA by an additional 15 days
S.2616 - to authorize certain programs and activities in the forest service the department of the interior and the department of energy
S.2619 - to protect innocent Americans from violent crime in national parks

13:05: Senate stands adjourned until 2:00 p.m. Monday - resume S.2248
Senators should be prepared to vote as early as 10:00 a.m. on Tuesday


Feb 7 - House Discussion re: FISA Representatives Blunt and Hoyer discuss handling of FISA in the House, and in particular the ramifications of not passing a bill before the PAA expires next week Friday.

HOYER: It is the immunity issue that gives many concerns, and they want to look at that carefully, and I think that's fair to do. Whether or not we will be able to do that next week, frankly, I tell my friend, I am not sure. ...

Because I am concerned that we not have a gap, we are trying to assure ourselves, and believe we are assured that there will not be a down time for our intelligence service should we not be able to reach agreement either with the Senate or with ourselves in the time frame of next Friday. ...

In fact, I would suggest to my friend we could deal with the immunity issue, which looks back not at present capacity nor future capacity, and resolve that issue in a separate bill if that was the concern about going forward. I think that could be done relatively quickly.


250 Representatives, 55 Senators, and Vice President Cheney filed a brief in the Heller/Parker case. Volkh: Congressional Brief in DC v. Heller. This brief, unlike the brief of the Solicitor General, does not call for a standard of review that is deferential to the District of Columbia law makers. Good summary of historical Congressional findings. I learned some things about federal government action as the US entered WWII. (Congressional brief in plain text)

Nine Democratic Senators signed the brief. The rest must hold that firearms ownership isn't an individual right. Republicans Ensign, Lugar and Warner sided with the majority of Democrats, and did NOT sign. Democrats Baucus, Casey, Feingold, Johnson, Lincoln, Nelson (NE), Salazar, Tester and Webb signed.

The brief is also discussed at SCOTUSblog: Cheney disagrees in D.C. gun case.