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

12:33

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.

14:27

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.

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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.

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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).

14:34

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.

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Romney has now changed his campaign from "suspended" to "withdrawn," and rendered his delegates to Senator McCain.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

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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.

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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.

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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

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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."

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Feingold Calls on Administration to Focus on Fighting Al Qaeda

S.2633

  • 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.
S.2634
  • 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.

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Collection of FISA articles linked from HowAppealing

February 19, 2008

SCOTUSblog: "Detainees: Lower court fracture a problem"

The brief is an easy read.

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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."

BOND SLAMS POLITICAL PLOY TO DISMANTLE BIPARTISAN TERRORIST SURVEILLANCE BILL - Feb 21, 2008

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.

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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.

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Court wants fast filing on new detainee case

           (ORDER LIST:  552 U.S.)

                             *FRIDAY, FEBRUARY 22, 2008*

                               ORDER IN PENDING CASE

   07-1054     GATES, SEC. OF DEFENSE, ET AL. V. BISMULLAH, HAJI, ET AL.

                 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

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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
    Funds

    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.

posted by cboldt at 2/13/2008 09:35:00 AM

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