Saturday, March 08, 2008

Federal Budget for FY 2009 - S.Con.Res.70

Message accompanying veto of Intelligence Authorization

... my veto is intended to allow the continuation of a separate and classified CIA interrogation program that the Department of Justice has determined is lawful and that operates according to rules distinct from the more general rules applicable to the Department of Defense.

"More general" rules? I'd say "more specific" or "more strict," or maybe "less general."

... my concern is the need to maintain a separate CIA program that will shield from disclosure to al Qaeda and other terrorists the interrogation techniques they may face upon capture.

That's mumbo-jumbo for "classified activity," never to be disclosed to ANYBODY, certainly not to be made public or capable of being judged by a court, any court, national or international. I think the administration's position in this regard is untenable in the long run.

For what it's worth, passage of the Intelligence Authorization bill, with the limits on interrogation technique, puts the "Congress has considered waterboarding and decided not to forbid it" argument to bed. Congress passed a law that limited interrogation in such a way so as to forbid waterboarding. "If the technique isn't on this list, it's forbidden."

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Press Briefing by Dana Perino - March 6, 2008

Q Thank you, Dana. Congressman Dana Rohrabacher has made a serious charge against the administration. He pointed out that Ramsey Yousef, who was a top lieutenant of Khalid Sheikh Mohammed, the architect of 9/11, is in federal prison. He has pretty substantial material suggesting that Mr. Yousef was also involved in the Oklahoma City bombing. Yet he's repeatedly been thwarted in trying to interview him. Now, as I understand the law, and as Congressman Rohrabacher said, a member of Congress can interview any federal prisoner. He said that the White House Counsel's Office, the Justice Department, has continually thwarted him on this. Your response.

MS. PERINO: I'm completely unfamiliar with the matter of what you're talking about, so I will check into it.

Q Will you?

MS. PERINO: Yes.

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Debate next week will be on "the budget."
The concurrent resolution has an abundance of eye-popping figures.

Text of S.Con.Res.70

(1) FEDERAL REVENUES.--For purposes of the enforcement of this resolution:
(A) The recommended levels of Federal revenues are as follows:

Fiscal year 2008: $1,871,888,000,000.
Fiscal year 2009: $2,013,878,000,000.
Fiscal year 2010: $2,199,989,000,000.
Fiscal year 2011: $2,432,588,000,000.
Fiscal year 2012: $2,656,131,000,000.
Fiscal year 2013: $2,755,116,000,000.

Projected increase in tax revenues:
2009: + 8% [ 8% increase from FY 2008]
2010: + 9% [18% increase from FY 2008]
2011: +11% [30% increase from FY 2008]
2012: + 9% [42% increase from FY 2008]
2013: + 4% [47% increase from FY 2008]

I call this "counting your chickens before they are hatched," or "here come tax increases, because the population isn't going to grow at that rate."


March 10

Wall Street Journal front page story on government surveillance efforts: "NSA's Domestic Spying Grows As Agency Sweeps Up Data," by Siobhan Gorman.

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House Files Contempt Lawsuit against Harriet Miers and Josh Bolton. HowAppealing links to the complaint.

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14:17: S.2734 - A [Republican] bill to aid families and neighborhoods facing home foreclosure and address the subprime mortgage crisis, either moved a step closer to, or was placed on the calendar.

Debate on the budget is limited to 50 hours, by statute. Senator Reid says he'd like to have it done by Thursday, but that if necessary, the Senate will conduct business on Saturday to get the task completed this week.

He indicates that the budget resolution contains four issues of substantial contention. He didn't list them.

Senator McConnell says the budget proposal is a groaner. It increases taxes. Yeah, so what are the Republicans going to do about it? Increase spending? More pork? Spare me the hollow rhetoric and get with cutting the federal government.

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McCain vs. The Addicts by Robert D. Novak

The GOP may be falling behind the Democrats, with House Speaker Nancy Pelosi moving toward a [earmark] moratorium. In the Senate, courageous freshman Democrat Claire McCaskill of Missouri supports the DeMint [earmark moratorium] amendment. She could be joined by her choice for president, Barack Obama. These developments encouraged Flake to say: "If Democrats actually move ahead with an earmark moratorium before Republicans, the Democrats will get the credit for eliminating earmarks, and, frankly, they'll deserve it."

The Republican leadership (McConnell, Boehner) and the vast majority of Republicans in Congress are against an earmark moratorium. Watch (and judge them by) what they do, not what they say.


March 11

There's nothing particularly substantive in any of S.Amdts.4147-4152, but S.Amdts.4151 and 4152 (both from Senator Kennedy) are identical. "On page 55, line 18, after the word 'program' insert 'or increasing Federal student loan limits'."

A few tidbits from yesterday's introduction to the Budget Resolution:

CONRAD @ 1793: The first amendment that will be offered to this budget will be to extend the middle-class tax provisions previously enacted. Those provisions are about to expire, and we want to extend them. ...

[US production of engineering graduates] should serve as another alarm to us because we know engineering is critical to economic growth. And if you are producing many more engineers, you are laying the foundation for stronger economic growth in the years ahead. ...

[Federal government] Spending as a share of GDP under the resolution goes down each and every year, from 20.8 percent of GDP in 2009 to 19 percent of GDP in 2013 ...

Now, this is where we get into the question of, Well, how do you come up with 2.6 percent more revenue than the President has? I believe you can come up with the 2.6-percent more revenue than the President has by looking at three areas: the tax gap--that is the difference between what is owed and what is paid ... offshore tax havens ... (Kellogg, Brown and Root, the nation's top Iraq war contractor, and until last year a subsidiary of Halliburton, has avoided paying hundreds of millions of dollars in Medicare and Social Security taxes by hiring workers through shell companies based in this tropical [Cayman Islands] tax haven.) ... [and] tax shelters ([e.g.] U.S. companies buy European sewer systems, write them off on their books in the United States for tax purposes, and lease them back to the European cities that built them)

GRASSLEY @ 1796: So I would say, with all due respect to the chairman, the chairman's mark was developed exclusively by Democrats in a partisan fashion. ...

Over the next fiscal year, the discretionary spending rises by 9 percent over last year's spending. ...

The definition of "fiscal responsibility" under this budget, over the fiscal year, is higher spending of $22 billion and higher taxes of $150 billion. ...

Nothing is proposed to rein in any entitlement spending. If the definition of fiscal responsibility is higher spending, no entitlement savings, and dramatically higher taxes, then this budget is fiscally responsible. Keep in mind that while ramping up $1.2 trillion on the taxpayers, the budget spends $775 billion of the Social Security surplus and grows the gross Federal debt by $2 trillion. ...

... the tax side of the Federal ledger is the only route to fiscal responsibility from the perspective of the [presidential election] candidates on the other [Democratic] side.

CONRAD @ 1800: We heard the Senator talk about a 9-percent increase in spending that is in this budget. I don't know how they came up with that calculation, but there is no 9 percent increase in spending in this budget ...

I think what the Senator's staff has done is to look at one small part of Federal spending, just nondefense domestic discretionary spending, which is about one-sixth or one-seventh of the budget. But if we look at total spending, there is a 1-percent difference total spending for 2009. ...

In 2000, the tax base of the United States was $2.03 trillion. Now, adjusted for inflation, it is $2.05 trillion. The revenue base of the country has basically been static for 8 years. The spending, most of it controlled by our colleagues on the other side because they were in charge until last year, has gone up 50 percent.

GRASSLEY @ 1800: I said a 9 percent increase in discretionary ...

ALEXANDER @ 1801: Traditionally, this budget week when we talk about the Federal budget is usually a week in which we are so awash in a blizzard of charts and speeches, abstractions, and competing statistics that it is very difficult to make much sense out of the whole discussion.

MENENDEZ @ 1803: The President is fighting to keep taxes low for the wealthy and wants to make it up by charging veterans more for their health care.

KYL @ 1805: We are collecting more money now at the Federal Government level than the historic average over the last 40 years. I hardly think the Federal Government needs more revenue. [but see the level during times of intense military action, i.e., "war", Dana PERINO: And so fighting terror is expensive and we are committed to making the investments necessary to keep people safe.] ...

Every time we try to target the rich in order to collect a lot of money to pay for spending in Washington, we end up hitting everybody else. [Would the increase be acceptable if the targeting effectively hit only the rich?] ...

... there is a direct correlation, by the way, between high taxes and high unemployment. [The United States] collect[s] about 34 percent of revenues as a percent of GDP ... Our unemployment rate is 4.8 percent. [The European Union] collect[s] 45.4 percent of revenues as a percent of their GDP, and their unemployment rate is almost 8 percent.

CONRAD @ 1807: I do not believe entitlement reform is ever going to happen--long-term entitlement reform--in a 5-year budget resolution. I think the only way we are going to get entitlement reform is a bipartisan effort, and that is what Senator Gregg, the ranking Republican, and I have offered, which is a task force of 16 members, equally divided, Republicans and Democrats, to come up with a long-term plan.

SANDERS @ 1809: This week, I will be offering an amendment which is being cosponsored by Senators Durbin, Mikulski and Boxer ... [that would] restore the top income tax bracket to 39.6 percent for households earning more than $1 million per year. ... would increase revenue by $32.5 billion over the next 3 years, including $10.8 billion in fiscal year 2009.

COBURN @ 1812: how dare we spend another penny when I can document, and none of my colleagues can refute, $366 billion a year of waste or fraud ...

According to the Government Accountability Office, if you are born tomorrow, you inherit $400,000 of unfunded liabilities. ...

David Walker, the Comptroller General of the United States, one of the fairest, most openminded men I believe I have ever met in my life, on Wednesday is leaving that position. Why is he doing that? He has a guaranteed job until 2012, a great job, head of an agency that really is stellar in what it does in its performance. Why is he leaving that position? Because he is scared to death for our country because nobody is listening in positions of power. ...

We hear all these false numbers. Yes, I said false. The budget numbers are games. The President's numbers about the deficit are wrong. The Budget Committee's numbers about the deficit are wrong. They are not realistic. ...

Will Durant, a historian, said that democracies never fail and are never collapsed from without until they have moral decay that causes the collapse from within. When we are spending the money of our grandchildren today and not doing anything about the waste we have in our budget, the question has to be asked: Are we already there?

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H/T HowAppealing (and NYT), news on the FISA front ...

House Democratic leaders are readying a proposal that would reject giving legal protection to the phone companies that helped in the National Security Agency's program of wiretapping without warrants after the Sept. 11 attacks, Congressional officials said Monday.

Instead of blanket immunity, the tentative proposal would give the federal courts special authorization to hear classified evidence and decide whether the phone companies should be held liable. House Democrats ... expect to take it to the House floor for a vote on Thursday. ...

House Democratic officials say they like elements of the idea because it would allow the courts to decide the issue and answer the concerns of the phone carriers, who say they have been muzzled in defending themselves by the government's efforts to invoke the "state secrets" privilege on the lawsuits.

"This approach allows the cases to go forward, but it also allows the companies to be unshackled to put on their cases," said one House Democratic staff member ...

Interesting turnabout on the "telecoms can't defend themselves" argument. The "can't defend themselves" argument was, IMO, awful to begin with, in that it doesn't help the proponents of retroactive immunity on the merits of the surveillance (which is the strongest argument for not prying), but incorrectly (IMO) casts the cooperating telecoms into the role of being naive and defenseless on the law. Now the "poor defenseless telecoms" argument is turned around and being used to advocate that the telecoms obtain the legal vindication they "deserve."

... the proposal virtually ensures that the heated debate over how to revise domestic surveillance laws will continue past this week, as lawmakers prepare to depart Friday for a two-week recess.

I still think the outcome is inevitable, that being what amounts to retroactive immunity; or legislated/courtroom action that prevents authoritative disclosure of the extent of warrantless surveillance the general public is exposed to.

House Democrats have supposedly published their proposed FISA alternative, but I've not found a source for the statutory language.

--- 18:37 ---

Found a source for the House Democratic proposal for FISA, and converted the PDF to plain text. Plaintext rendition of House Democratic proposed FISA law (Substitute amendment for H.R.3773).

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More from Howard Bashman, on the senator with a wide stance: Craig lawyers dispute 'prehensile stare'.

Prehensile stare? Now I have to find a dictionary. I always thought of "prehensile" being an attribute of e.g., a monkey's tail, that of being controllable and able to wrap and grip objects.


March 12

Senator Coburn's Speech of March 11 ... a real barn-burner, worth the time it takes to at least skim it.

One of the programs he derides is the TV Converter Box Coupon Program. I confess that I participated in this, and I received one of the federal coupons in the mail. My plan when requesting the coupon was to "collect" it, rather than to "spend" it. That's one less coupon being turned around into additional taxpayer-owed debt.

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Pending:

  • Baucus Amendment No. 4160, to provide tax relief to middle-class families and small businesses, property tax relief to homeowners, relief to those whose homes were damaged or destroyed by Hurricanes Katrina and Rita, and tax relief to America's troops and veterans.
  • Graham Amendment No. 4170, to protect families, family farms and small businesses by extending the income tax rate structure, raising the death tax exemption to $5,000,000 and reducing the maximum death tax rate to no more than 35 percent; to keep education affordable by extending the college tuition deduction; and to protect senior citizens from higher taxes on their retirement income, maintain U.S. financial market competitiveness, and promote economic growth by extending the lower tax rates on dividends and capital gains.
At 9:30 a.m. on Wednesday, March 12, 2008, the Senate will resume consideration of S. Con. Res. 70 ... with Baucus S.Amdt.4160 to remain as the regular order, regardless of the pendency of other amendments.

09:40: This morning's back and forth between Senators McConnell and Reid involved "the farm bill," which is stuck in some sort of congressional limbo. The Senate passed, without debate, an extension of some existing farm-related legislation.


March 13

White House Threatens Surveillance Veto - Pamela Hess (AP)

In a fresh veto threat, the Bush administration said Wednesday that surveillance legislation proposed by House Democrats ... would encourage the judge to review in private the secret documents underpinning the program to decide whether the companies acted lawfully.

The administration has prevented those documents from being revealed, even to a judge, by invoking the state secrets privilege. That puts the companies in a bind because they are unable to defend themselves in suits that allege they violated wiretapping and privacy laws.

But some in Congress have reviewed the secret documents, they are the basis for the Senate Select Committee on Intelligence conclusion that "the program" was lawful.

The statement that "state secrets" puts the telecoms in a bind really sticks in my craw. The suits go away, are necessarily dismissed for want of evidence, if the courts accept the assertion of state secrets. So far, there is no indication that any court is inclined to pierce that privilege. The Ninth Circuit upheld it, to the extent it would not let a plaintiff recreate any part of a secret government document from memory. That is, the plaintiffs own memory contains a state secret that cannot be used in court, or even disclosed to the public.

"State secrets" works FOR the telecoms interest in getting out of court, not against them.

I've been banging a FISA drum in a FreeRepublic thread, "House Democrats Reject Telecom Immunity," and now have my curiosity piqued as to the source of the "cooperation is at risk" argument. Has any telecom manager actually expressed that? Or is the concern purely self-generated by the government? I'm not even sure a government representative has directly asserted "we are told by the telecommunications companies that cooperation (with statutorily-compliant orders) is at risk."

The heat on FISA is rising, with yesterday's Mukasey/McConnell letter to Pelosi objecting to the proposed substitute amendment to H.R.3773 about to be augmented by a 9:20 a.m. EDT televised speech from President Bush.

House action is formally set out in H. Res. 1041, with the complete text of the House-proposed FISA bill in House Rept. No. 110-549.

H.Res.1041 sets out a process where the House will consider and vote on ONLY the language proposed in House Report 110-549. It will be in order to "make a motion that the House concur in the Senate amendment to H.R. 3773 with the amendment printed in this report."

The procedural posture is "normal," in that the Senate amended H.R.3773 (in the nature of a complete substitution), and sent it back to the House. Now the House is free to take up and amend the Senate's version. If the House creates differences, and finds them sufficient to warrant, it may request a conference.

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The budget act has 21 pending amendments. "Senators should be prepared to begin the so-called vote-arama as early as 11 a.m."

The House version of the federal budget is H.Con.Res.312, with some debate having been conducted yesterday.

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09:24: President Bush's speech hits exactly the same FISA arguments made in other venues. Some of the arguments are, I think, fair, but others are intellectually dishonest and raw appeals to emotion.

I'm not keen on the idea of an investigatory commission, but I disagree with the concept that Congressional oversight can substitute for courts when the issue is a "case or controversy." Better to let the tri-part government work. I disagree that the issues is "trial lawyer" driven, and doubt that there is even a single plaintiff who can show surveillance and obtain relief -- i.e., there aren't billions of dollars at risk.

Sure, the suits are annoying. But they'll run their course and be done. I'm sure the government was annoyed by the Reynolds suit, where widows claimed government negligence resulted in the deaths of their husbands, but the case ran its course, all the way to SCOTUS. The case was dismissed without any disclosure of classified information.

I emphatically don't buy the canard that retroactive immunity is necessary to insure future "cooperation with lawful orders." I don't think retroactive immunity is necessary to insure future cooperation with unlawful orders! Immunity wasn't necessary or even discussed in 1978, after widespread national-security snooping was revealed, e.g., against suspected communist sympathizers such as Martin Luther King.

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On the subject of the government's position that the Heller case (DC gun law) should be remanded for fact finding, and that court review of laws impacting the second amendment don't merit strict scrutiny:

Gun Battle at the White House? by Robert Novak

The word was passed in government circles this week that Clement would amend his position when he actually faces the justices -- which would be an odd ending to bizarre behavior by the Justice Department.

Marty Lederman weighs in on Novak's column, in "Novak, Clement, Cheney, and the Gun Case." I agree with Professor Lederman on this one.

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An outstanding one-stop shop for the government's FISA arguments: Government Website re: FISA, USA PATRIOT Act, and similar. The March 12, 2008 letter from AG Mukasey and DNI McConnell to House Speaker Pelosi can be obtained from that site.


March 14

So, the Senate completed action on the budget resolution, and is in a two week recess, with pro-forma sessions in store in order to prevent recess appointments.

At first blush, and certainly in combination with the failure of the Senate to timely vote on nominees, the prevention of recess appointments seems wrong. But the Constitution is fairly clear on its intention - the presidential power to recess appoint applies to vacancies that HAPPEN during the recess. That made plenty of sense when "the recess" was the vast majority of the calendar year. See brief history of the duration and timing of Congressional Sessions.

"Stalemate Over Judicial Nominations Dampens Bush Legacy" by Pedro Ruz Gutierrez and Carrie Levine covers the big picture of judicial confirmations in the remaining months of the Bush presidency. Recess appointment issues play large in the spite-feud between President Bush and the Democrats in the Senate.

President Bush nominated G. Steven Agee to the 4th Circuit. The summary of Circuit Court nominations has been updated accordingly. Agee's is the first Circuit Court nomination of the 2nd Session of the 110th Congress.

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On the budget, the earmarks moratorium of DeMint S.Amdt.4347 was shot down on a 29-71 vote. Bayh, Clinton, Feingold, Lieberman, McCaskill and Obama voted AYE. Vote and news initially taken from an AP article, "Budget Would Torpedo Bush's Tax Cuts."

Subsequently, the Chair sustained the point of order that DeMint Amendment No. 4347 was not germane, and the amendment thus fell.

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Senator Vitter's S.Amdt. 4309, to create a reserve fund to ensure that Federal assistance does not go to sanctuary cities that ignore the immigration laws of the United States and create safe havens for illegal aliens and potential terrorists, was TABLED on a 58-40 vote, with Collins, Dole, Hagel, Lugar, Murkowski, Snowe, Specter, Stevens and Voinovich being in favor of sanctuary cities; and Landrieu against.

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Typographical error in the Senate's roll-call vote summary page:

00064 13-Mar S.Con.Res. 70 On the Amendment S.Amdt. 4218 Rejected Sanders Amdt. No. 4218; to put children ahead of millionaires and billionaires by restoring the pre-2001 top income tax rate for people earning over $1 million, and use this revenue to incest in LIHEAP; IDEA; Head Start; Child Care; nutrition; school construction and deficit reduction.

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Pending:

Motion to proceed to the consideration of H.R. 3221, an act moving the United States toward greater energy independence and security ...

The subject is not really an energy bill, but a housing bill. H.R.3221 is being used as the vehicle to debate S.2636 - Foreclosure Prevention Act of 2008. Cloture on a motion to proceed to this was rejected on March 3rd February 28th, on a 48-46 vote (party line, except Smith).

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Action today will be in the House, on FISA.

House Closes Its Doors for Spying Bill - by Pamela Hess (AP)

Democratic Rep. Sheila Jackson-Lee of Texas said she didn't believe any minds were changed on the bill but that the [secret] session allowed views to be exchanged.

"We couldn't have gone more of an extra mile to make sure we're doing the best for national security," she told The Associated Press.

Rep. Pete Hoekstra of Michigan, the top Republican on the House Intelligence Committee, said in an interview that he read aloud the titles - but not details - of intelligence reports "that shows the nature of the global threat and how dynamic the situation is, and how fluid."

Dana Milbank's story in this morning's Washington Post, "The Secret Is Out: There Was No Big Secret," merely narrates the debate that preceded the secret session.

Trivia from the Daily Digest:

at 10:11 p.m., the House began proceedings held in secret session.

Here is a link to the debate preceding the secret session of the House.

10:20

The House is in one hour of debate and vote on H.Res.1041, "the rule" that provides for taking up, debating, and voting on the Democratic-drafted FISA language proposed in House Report 110-549. If H.Res.1041 passes, it will be in order to "make a motion that the House concur in the Senate amendment to H.R. 3773 with the amendment printed in this report."

Good article in the WSJ, "Democrats Dig In for Surveillance Battle" by Siobhan Gorman

Some Bush administration officials said privately that the pushback caught them off guard. In August, Republicans were able to outmaneuver Democrats and force passage of a White House-sponsored measure to temporarily broaden warrantless domestic spy authority. At the time, the president warned that failure to pass a measure would leave the country in danger. When lawmakers returned from their summer break, Republican lawmakers planned to use the pressure of the expiration of the temporary law in February to engineer the same result for a permanent expansion of surveillance authority, along with a new immunity provision. ...

There is also a sense that Republicans may have overplayed their hand by issuing dire warnings but refusing to negotiate with Democrats ...

Amen to that, "overplayed their hand." The legislative process of FISA would have played out much differently if retroactive immunity hadn't been demanded.

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H/T Howappealing for an informative set of article links, including, "U.S. Army altered Khadr report" by Omar el Akkad (Toronto Globe and Mail). The facts of the Khadr case are obviously unique, but the evidentiary production issues are perhaps similar in all the CSRT proceedings, and hence have play in the Bismullah case that is soon to be heard by the US Supreme Court.

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An argument by the GOP in the House, to reject taking up the Democratic-prepared language, is that the House would pass the Senate FISA language if given the chance. Now there the House-language option is on the table, and the issue may become which version is voted on first. The GOP is proposing to make the vote on H.Res.1041 to be an "either/or" proposition, whre rejection of H.Res.1041 would about to agreement to pass the Senate bill.

If the GOP was confident that the Democratic-prepared language would be rejected, there'd be no concern about letting it proceed to a vote.

11:24: Starting a vote on a motion to end debate (and vote) on H.Res.1041.

While the vote is going on C-SPAN callers are running against telecom immunity. Pro-immunity arguments are "the telecoms helped in the wake of 9/11" and "the Senate passed the bill."

11:48: Starting the roll-call vote on passage of H.Res.1041.

More pro-immunity arguments: "This is just for the trial lawyers," and "the government is constitutionally obliged to protect its citizens."

In the House, will we get GOP-driven motions to adjourn and calls for roll call votes on motions table the motions to reconsider? I'm guessing, "yes." Full court press on delay. The House version of filibuster.

12:06: "The rule" (H.Res.1041) passed 221-188. No delay proceeding to the one hour of debate. Stack another guess onto the "mistake" pile.

13:46: Starting a vote final passage of H.R.3773 as amended by Democratic-drafted language.

14:06: H.R.3773 as amendmed by Democratic-drafted language passed the House on a first-announced 213-195 vote, adjusted to 213-197 as voting was held open. Roll Call Vote No. 145.

Democrats voting NAY: Boren, Capuano (not a "Blue dog"), Carney, Cooper, Filner (not a "blue dog"), Hinchey (not a "blue dog"), Holden, Kucinich (not a "blue dog"), Lampson (not a "blue dog"), McDermott (not a "blue dog"), Shuler and Welch (VT) (not a "blue dog")
I count 5 of the 21 "blue dogs" who were in favor of the Senate bill, changing their minds.

That sure complicates passage of FISA. Off to the Senate (or back to the Senate) with H.R.3773.

Statement by Deputy Press Secretary Tony Fratto on Partisan House Bill

... The House bill is not a serious effort to move the legislative process forward, nor is it a serious effort to protect our national security. It is a partisan bill designed to give the House Democratic leadership cover for their failure to act responsibly and vote on the bipartisan Senate bill. The President trusts that Senate leaders, who have acted in a far more bipartisan and responsible way than their colleagues in the House, will see the House bill for the political ploy that it is, reject it, and send back to the House the strong bill the Senate has already passed.

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Rockefeller Reaction to House FISA Proposal - March 11, 2008

...As soon as the House sends us this new bill, we will once again roll up our sleeves and get back to work on a final compromise that the House, Senate and White House can support.


March 15

Andy McCarthy on the House Democratic Action on FISA: FISA Bait and Switch

Rather than permit a vote on the Senate bill that would restore crucial overseas surveillance authority, House Democrats, along party lines, have rammed through an alternative proposal that grants new privacy rights to to terrorists overseas and preserves the multi-billion dollar lawsuits their trial lawyer pals are pursuing against the telecoms. The vote was 213-197 (12 Democrats voting against their leadership).

The House has recessed for a two-week vacation. This maneuver is obviously designed to spare Democrats the embarrassment to which they were subjected a few weeks ago, when they adjourned without taking any action on the Senate bill. But the bottom line is: when the Protect America Act lapsed on February 16 due to House inaction, we lost the ability to monitor without restrictions emerging terrorist threats overseas. As National Intelligence Director Mike McConnell (a former Clinton Administration director of the NSA) has observed, we have lost intelligence. Thanks to today's action, that unacceptable situation will continue.

  • The "along party lines" outcome is going to attach, either way. Had the Senate bill been promoted, the GOP would have been 100% for it, and some Democrats would have voted against their leadership. 5 of the 21 who would have voted for the Senate version three weeks ago decided to vote for the DEM version yesterday -- they chose an option that wasn't available then.
  • Passing the Senate's version a month ago, as demanded by the administration, would also be fairly characterized as being "rammed through" the House, same as above.
  • The "multi-billion dollar lawsuits" are described by many in the GOP as being apt to result in trivial awards, if any. That is, the plaintiffs can sue for billions, but they probably won't get an award if the cases run to conclusion.
  • The firms litigating the cases are non-profit trial lawyers (not that being non-profit means they aren't "trial lawyers" -- the administration could also use the epithet "ACLU lawyers" to make the point that they think the suits are based on a worthless "right.")
  • "grants privacy rights to terrorists overseas" is just plain inflammatory.
  • "lost the ability to monitor without restrictions emerging terrorist threats overseas" is an odd complaint in two regards. First, the president has inherent authority to probe communications for foreign intelligence information, so any acquiesence to statutory limitations (or inaction on the excuse that there is no statutory affirmation of an inherent authority) is self-imposed. Second, what is an "emerging" terrorist threat?
        There is absolutely no legal issue with obtaining the complete communications to and from a known or suspected foreign terrorist. Those communications are CLEARLY in the nature of foreign intelligence.
        I reject characterizing the loss in congressionally-permitted surveillance ability in the "restricted" form that Mr. McCarthy adopts -- which aludes to the PAA as being limited to "emerging terrorist threats overseas." A review of the lapsed PAA shows that it contains Congressional permission to conduct warrantless monitoring of any communications into and out of the US, whether or not the communication contains clues of an emerging threat.

9 Comments:

Blogger Epicurus said...

wrt the ongoing FISA fiasco, I actually think there's a very interesting dance going on in which both the Democrats and the GOP are actually maneuvering in two plains of argument simultaneously.

The surface debate is fairly clear and has been thoroughly debated. What I think is interesting is what is going on just below the surface.

Regardless of any legislation (or lack of legislation for that matter), the government can enter into these ongoing lawsuits and claim the state's secrets privilege, and baring a radical departure from past practice, the courts will generally uphold these claims. Yet the GOP is arguing that without retroactive immunity, the telco's will be unable able to defend themselves without revealing classified information. To me this argument is disingenuous, as the government can effectively shut down these suits before any classified information is revealed.

On the Democratic side, you now have this new proposal which, rather that providing a "protected forum" in which classified information can be revealed in camera and in some cases ex parte, actually cuts the state's secrets privilege off at its knees, thereby allowing real information to get out which might embarrass the administration or even potentially put administration officials in legal jeopardy.

Of course, the administration can't point out this "true" objection to the Democratic proposal, because it would be tantamount to admitting they have something specific to hide. Likewise, they can't very well stand up and say that retroactive immunity is irrelevant given the state's secrets privilage, because that too would make them look foolish.

The Democrats don't really care about immunity for the telcos one way or the other, but by agreeing to retroactive immunity, they lose any hope of getting at the info they really want. Consequently, they have to invent this cluged together in camera procedure to try to get around both the state's secrets issues and the fear/insecurity/lack of future cooperation issues simultaneously.

I think the future cooperation issue is the biggest red herring out there, as any telco will jump to comply with any judicially sanctioned order. They respond to judicial orders every day in the ordinary course of business....

3/17/2008 5:27 PM  
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4/01/2010 7:38 AM  

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