Monday, March 03, 2008

Safety, from the Senate: March 2008

On leap day last week, the Motion to Invoke Cloture on the Motion to Proceed to H.R.3221, A legislative vehicle for the Foreclosure Prevention Act of 2008 (not the New Direction for Energy Independence, National Security, and Consumer Protection Act and the Renewable Energy and Energy Conservation Tax Act of 2007), was REJECTED on a 48-46 vote
Pure Party Line, except Smith.

The Motion to Proceed was withdrawn. The above vote represents a rejection of the Foreclosure Prevention Act of 2008 -- the text of which is in S.2636.

The next shot at housing/economic stimulus is apt to be a year-old Republican offering, S.12 - A bill to promote home ownership, manufacturing, and economic growth. That bill was read the first time on Friday.

Three for three as to "withdrawal" last week. The Senate withdrew "motions to consider" the Iraq pull-out and "report on WOT" bills (S.2633 and S.2634) after limiting debate and using the time available for the debating.


This is an interesting subject, not exactly the same as the debate surrounding "terrorist detainees," and not exactly the same as the US (generally) avoiding stepping in when a US citizen is charged with a crime overseas.

Munaf was captured and held by US forces in Iraq, turned over to the Iraq justice system, and convicted (maybe at the behest/urging of US forces) by an Iraq court. Before his trial, he sought habeas in a US court, and was denied. His conviction has been reversed, which affects the reason the US court gave for denial of habeas.

Omar was also captured and held by US force in Iraq, but his habeas petition was granted, before US forces could transfer him to the Iraqi justice system.

[NEW!] Munaf's Iraqi conviction nullified - Mar 3, 2008
Did Omar and Munaf Just Become the Same Case? - Mar 2, 2008
Iraqi Court Reverses US Citizen's Conviction - Mar 2, 2008
Court grants six new cases - Dec 7, 2007

The liberal Brennan Center is defending both detainees, and has a summary (with links to briefs) at "Geren v. Omar and Munaf v. Geren".

The US Supreme Court will hear oral argument for both cases on March 25, 2008.


The FISA debate continues in the House. (I've been maintaining links, without comment, at "FISA - Senate Amendment and Debate Links").

CNN Late Edition - March 2, 2008

REYES: Secondly, both the Senate version and the House version have prospective immunity. So in talking to at least some of the representatives from the telecommunications companies, they recognize that. What they're interested in is retrospective immunity, but they know that both the House and the Senate are in favor of giving them that immunity as we go forward.

BLITZER: So it sounds like you're getting close to letting this legislation come up for a vote in the House and to try to work out a deal that acceptable to the Senate and the president. Is that a fair assessment?

REYES: That's a fair assessment. We think we're very close. Probably within the next week, we'll be able to hopefully bring it to a vote.


... the Senate, at 2:18 p.m. Friday, February 29, adjourned until Monday, March 3, 2008, at 2 p.m.

... at 3:30 p.m. on Monday, March 3, 2008, the Senate resume consideration of the motion to proceed to S. 2663 [text at page 1127], a bill to reform the Consumer Product Safety Commission to provide greater protection for children's products, to improve the screening of noncompliant consumer products, to improve the effectiveness of consumer product recall programs, and for other purposes; provided, that at 5:30 p.m. the Senate vote on the motion to invoke cloture on the motion to proceed to S. 2663, with the time between 3:30 and 5:30 equally divided between the two Leaders or their designees.

--- 14:19 ---

Senator Reid reports good news for the court clerks, more work than they can handle processing foreclosures (he doesn't cast it as good news, he focuses on the foreclosure end). He indicates a need and willingness to work with the GOP on a housing package, but that the action needs to come soon because the Senate will be moving to the budget next week.

Senator McConnell rebuts, generally, the DEM proposal for dealing with banking/housing issues, and urges the Senate to consider a bill that implements the GOP proposals. GOP is proposing a major tax credit for people who buy foreclosed property in high crime areas, provided they intend to live there. The DEM proposal to allow renegotiation of failed loans, says he, would result in increased mortgages to other borrowers (but, I note, not to those who have fixed-rate mortgages).

--- 17:56 ---

The motion to limit debate on the motion to proceed to the consideration of S.2663 - CPSC revisions, was PASSED on a 86-1 vote. (Coburn)

"That was easy."

18:28: The Senate stands adjourned until 10 a.m. tomorrow. S.2663 (CPSC) is on deck.

WH Policy Statement of CPSC Revisions (has concerns, no veto threat)

March 4, 2008

Dueling "Confirm the judicial nominees" speeches from yesterday's record:

Senator Specter
Senator Leahy

Noted at, with links to Specter's letter and Leahy's press release: "Ratcheting up the Pressure."


A couple of interesting/funny items -- h/t HowAppealing:

"Mukasey's Paradox" by Jonathan Turley (LA Times)
"FISA Update May Hinge On Two Separate Votes" by Ellen Nakashima and Paul Kane (WaPo)

On FISA, there is a prediction that the House will act next week. The voting protocol below permits anti-immunity representatives to vote in favor of the surveillance aspects, and somewhat avoid being tagged as "soft on surveillance." They still lose the immunity issue, but that's a foregone conclusion when a majority of Congress sees fit to retroactively neuter the civil remedy it provided in 50 USC 1810.

Some aides on Capitol Hill were discussing the potential for the House passing the Senate version but breaking it into two votes: one on the portion of the bill that deals with revising FISA provisions and a second on the immunity measure.

This procedural move would allow many Democrats to vote against immunity but still make its approval all but certain, since almost every Republican and some centrist Democrats would vote in favor.


SCOTUSblog: "Munaf's Iraqi conviction nullified" contains a concise summary of the Iraqi Court's rationale for reversal, and "sen[ding the case] back to pursue the investigation further."

18:43: The Senate stands adjourned until 9:30 a.m. tomorrow, still on the subject of S.2663 (CPSC).

March 5, 2008

Dana Rohrabacher chastises the Administration. His opening paragraph:

Mr. Speaker, tonight I will discuss some serious examples of how this administration's contemptuous disregard for the authority delegated to Congress by the Constitution has impacted on how we do business here in Washington. This bad attitude has consistently manifested itself in a sophomoric resentment of Congress' constitutional role as an equal branch of government. ...

... while I am condemning our President tonight, I recognize that in the past, many liberal left Democrats have been obstructionist in their relationship with the White House as today that I see the White House is being obstructionist to Congress.

Specific complaints:

  • Perfunctory investigation into foreign terrorist links to the OKC bombing (an amazing read of its own right)
  • The administration denied to Congressional Committee, that it had a written draft Iraq security agreement
  • Failure to polygraph regarding which documents were stolen by Sandy Berger
  • Secrecy and misleading public representations surrounding negotiation of a Social Security "totalization" agreement with Mexico
  • Handling of the Ignacio Ramos and Jose Compean prosecution

Mr. Rohrabacher concludes with a pointed, nay, incendiary, charge.

When I hear my friends on the other side of the aisle accusing this Administration of stonewalling, of cover-ups, or of thwarting investigations, I sadly must concur with them. This White House exemplifies needless hostility, turf jealousy and obstructionism. The American people should know it, and should know that this charge comes not from a partisan Democrat, but from a lifetime conservative Republican.


In the Senate, on the subject of CPSC legislation (S.2663):


  • Pryor Amendment No. 4090, of a technical nature.
  • Cornyn Amendment No. 4094, to prohibit State attorneys general from entering into contingency fee agreements for legal or expert witness services in certain civil actions relating to Federal consumer product safety rules, regulations, standards, certification or labeling requirements, or orders.
  • DeMint Amendment No. 4096, to strike section 21, relating to whistleblower protections.
  • Feinstein Amendment No. 4104, to prohibit the manufacture, sale, or distribution in commerce of certain children's products and child care articles that contain specified phthalates.


Senators Reid and McConnell spat a bit about which party is responsible for Senate failure to take up housing/mortgage reform. Each party insisting on bringing up its own bill, and the GOP having rejected the opportunity to take up the DEM bill (see 48-46 vote rejecting cloture on the motion to proceed to what amounted to S.2636the Foreclosure Prevention Act of 2008)


Morning business ... 66% of the federal budget is entitlements and interest on the debt. Well, increase the entitlements then! Go for broke! Oh, and now Senator Crapo notices that the so-called "economic stimulus" package is borrowed money that has to be repaid in the future.

The budget debate will begin in earnest next week.

March 6, 2008

S.2663 - CPSC Reform Act, is still pending, with a short list of amendments.

Vitter's S.Amdt.4097 would work an interesting change in the dynamics of State's Attorney Generals decisions to file product recall and similar lawsuits.

``(g) Attorney Fees.--The prevailing party in a civil action under subsection (a) ...

[whenever the attorney general of a State has reason to believe that the interests of the residents of that State have been, or are being, threatened or adversely affected by a violation of any consumer product safety rule, regulation, standard, certification or labeling requirement, or order prescribed under this Act or any other Act enforced by the Commission]

... may recover reasonable costs and attorney fees.''.

Senator Whitehouse said, "I will oppose the Vitter amendment [because it] requires State taxpayers to pay the legal fees and costs if a manufacturer prevails in a consumer protection suit brought by a State attorney general."

Golly, loser pays is okay, as long as the loser is the manufacturer, but loser pays isn't any good when the government brings (and loses) a case. Well, news flash, the customer pays either way, either through taxes or the cost of a product.

Either loser pays, both ways, or each side pays its own costs. That'd be fair. But the Vitter amendment is almost certain to be tabled or rejected. "The government is always right."

TABLED on a 56-39 vote. (Cochran, Martinez, Murkowski, Smith, Snowe, Specter, Stevens and Warner)

Heh. One part of the proposed law is this ...

(b) REPORT.--Not later than 120 days after the date of enactment of this Act, the Consumer Product Safety Commission shall submit a report to the Senate Committee on Commerce, Science, and Transportation that--

(1) reviews the effectiveness of its labeling requirements for charcoal briquettes (16 C.F.R. 1500.14(b)(6)) during the windstorm that struck the Pacific Northwest beginning on December 14, 2006;

Without even looking, I can say, with a high degree of certainty, that the regulatory labeling requirement is not effective. That is, the labeling doesn't make an appropriate impression on the reader. CPSC mandated warning language is chronically bad, as one would expect from "bureaucratic consensus."

The debate on DeMint's S.Amdt.4124 is interesting too, where the Congress is otherwise planning to get into the business of imposing design solutions. Or maybe something simpler. The product in question is a powered garage door operator, and the safety feature is stopping and/or reversing a closing door before it can cause injury.

The DeMint amendment proposes to strike "... all automatic garage door openers that directly drive the door in the closing direction that are manufactured more than 6 months after the date of enactment of this Act shall include an external secondary entrapment protection device that does not require contact with a person or object for the garage door to reverse."

The inclusion of this provision in the Consumer Product Safety Commission Reform Act represents why the American people do not trust Congress. It represents Washington politics as its very worst. After the experts approved a competing technology for sale in the United States, this one company, Chamberlain, retained a high-powered lobbying shop in Washington and paid them in excess of $140,000 to secure inclusion in this provision. Because of the connections to the lobbying firm, it was able to secure proposed Federal legislation that would protect its company from competition.

Is the technology that the bill mandates the only safe technology? Not at all. According to the experts at Underwriters Laboratories, the technology the bill mandates is safe, but it is not the only safe technology. The Underwriters Laboratories, through its standard product certification process, has certified another technology as safe, which does not use a photosensor but uses approximately 15 pounds of resistance to trigger a reverse on the door.

For example, according to the Architect of the Capitol, the doors of the Senate subway that we all ride on, which carries thousands or maybe millions of people per year from the Dirksen to the Hart Senate office buildings, uses touch technology. If it touches an object that provides more than 30 pounds of resistance, the doors will pop back open. The Senate daycare also uses the same technology on its doors, which reopen if they touch an object with 8 to 15 pounds of resistance. Thus, the technology that the Underwriters Laboratories found safe, which this bill deems unsafe, requires less resistance than the Senate subway doors and approximately the same resistance as the Senate daycare doors to reverse the course.

So, if the Senate REALLY cared, it would mandate the non-contact photo-electric eye object detection for ALL powered doors, not just overhead garage doors.


Senator Grassley beat up the administration for secrecy too, but from a different direction that the one taken by Representative Rohrabacher.

I would like my colleagues to know this is the first of several trips to the floor that I intend to make about the executive branch and its stonewalling. I am tired of it, and I am going to talk about it until we in the Senate and this Senator gets what we are entitled to under the Constitution. ...

... the use of the jet aircraft that is available for the FBI
... FBI whistleblower Michael German (the FBI still will not admit that German was right about domestic and international terrorist groups meeting to discuss forming operational ties
... internal FBI e-mails on their issuance of exigent letters
... Whether anyone in the Justice Department has taken any serious steps to find out who in the bureau was leaking case information about Stephen Hatfill to the press is still a mystery. And why should it be? It shouldn't be a mystery. Have they obtained and searched the phone records of their own senior officials to see who was calling the reporters in question?
... Cecilia Woods came to my office to report that she was retaliated against for reporting that her supervisor had an inappropriate intimate relationship with a paid informant and that her supervisor was inexplicably not fired, despite overwhelming evidence of this misconduct
... two Florida State University students arrested near Goose Creek, SC, with explosives in their trunk. One of them, Ahmed Mohammed, entered the United States on a student visa. However, I learned he had previously been arrested in Egypt and that he even declared his arrest on his visa form.


On the theme of the budget, here's Senator Voinovich on government spending:

what we do is we hide from the American people the fact that we are borrowing money from ourselves to run our Government, and the only thing we report to them is the public debt, but we don't report to them the Government debt. So when we make these figures available, we will say, oh, the deficit is $371 billion, but the truth of the matter is, when you add in the Social Security surplus, it is $566 billion. ...

47 1/2 percent of that privately owned national debt is held by foreign creditors, mostly foreign central banks. That is up from 13.3 percent only 5 years ago. And who are the foreign creditors? The three largest creditors are Japan, China, and the oil exporting countries, or the OPEC nations.


I guess "retroactive immunity" isn't all the rage ...

Ex-senator's legal tactics spurned (Wa Times)

Granting Mr. Dayton immunity because he had left office "would render the protections [granted by the Congressional Accountability Act of 1995] wholly illusory and defeat the goals of the [law]," the two lawmakers argued.

Sort of like the wholly illusory protection of 50 USC 1810, the part of the FISA statute that provides a civil remedy if a person's communications were intercepted without appropriate linkage to foreign intelligence.

--- 17:16 ---

S.2663 - CPSC Reform Act, was PASSED on a 79-13 vote. It goes to the House for further adjustment, perhaps to a conference, but not at the request of the Senate.

March 7, 2008

Here is how the Senate disposed of DeMint's garage door opener amendment:


(a) IN GENERAL.--Notwithstanding section 203(b) of the Consumer Product Safety Improvement Act of 1990 (15 U.S.C. 2056 note) or any amendment by the American National Standards Institute and Underwriters Laboratories, Inc. of its Standards for Safety-UL 325, all automatic residential garage door operators that directly drive the door in the closing direction that are manufactured more than 6 months after the date of enactment of this Act shall include an external secondary entrapment protection device that does not require contact with a person or object for the garage door to reverse.

(b) EXCEPTION.--Except as provided in subsection (c), subsection (a) does not apply to the manufacture of an automatic residential garage door operator without a secondary external entrapment protection device that does not require contact by a company that manufactured such an operator before the date of enactment of this Act if Underwriters Laboratory, Inc., certified that automatic residential garage door operator as meeting its Standards for Safety-UL 325 before the date of enactment of this Act.


(1) IN GENERAL.--Within 1 year after the date of enactment of this Act, the Consumer Product Safety Commission shall review, and if necessary revise, its automatic residential garage door operator safety standard, including the requirement established by subsection (a), to ensure that the standard provides maximum protection for public health and safety.

(2) REVISED STANDARD.--The exception provided by subsection (b) shall not apply to automatic residential garage door operators manufactured after the effective date of any such revised standard if that standard adopts the requirement established by subsection (a).

That language sucks. It grandfathers designs currently UL certified to UL-325 (and only UL certification counts, not any other Nationally Recognized Testing Laboratory recognized by OSHA), but creates a gap where any new design can't be certified unless it has a non-contact -secondary- (redundant) safety; or until the CPSC confirms that its design standard admits garage door operators that lack a non-contact safety.

It also sucks because it imposes a statutory requirement of MAXIMUM protection, which is a test that can never be attained in practice. It is always possible to add more protection. The test is, "is it safe enough," not "is it the safest possible."


Fourteen (14) Immigration enforcement bills were placed on the calendar yesterday. Senators Reid and Kennedy spoke against this set of bills, and Senators Sessions, Dole DeMint, Chambliss, Vitter and Specter spoke in favor of the bills.

One of the bills, S.2719, would "provide that Executive Order 13166 shall have no force or effect." This EO, if I recall correctly, is the one that mandates multi-lingual federal services. See "Language of the Country: Inhofe vs. Salazar" for more details.


Yesterday's action also included a debate between Senators Cornyn and Reid on "Republican Obstructionism". I'd like to know whether there was, in fact, GOP objection to proceed to some of the non-contentious bills, and if so, who invoked it. The leader can file cloture motions on motions to proceed, even if there is no objection to proceeding. Reid offered, as examples, cloture motions that passed unanimously. Where is the objection?

My general take is that both sides are playing "hide the ball."


Mr. REID. Mr. President, as I announced earlier, there will be no rollcall votes tomorrow [Friday] or Monday. Senators should be prepared for a busy week next week as the Senate considers the budget resolution.


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