Tuesday, May 20, 2008

Senate May-hem Continues : 2008

Straight from the Congressional Record of yesterday ...

... the first vote of the day will occur at 2:30 p.m. on the confirmation of the nomination of G. Steven Agee to be U.S. Circuit Judge for the Fourth Circuit. Following executive session, we are expected to turn to the consideration of the House message to accompany H.R. 2642, the Iraq supplemental appropriations bill.

The two hot issues of the moment appear to be judicial nominations (Senator Specter ranted about this yesterday), and whatever garbage is stuffed into the Supplemental, e.g., the AgJobs immigration bill advocated by Senators "Wide Stance" Larry Craig and Dianne Feinstein, plus Iraq wind-up and related measures.


Senator Reid suggests that the Supplemental may not get through the Senate this week. Time is short, with a "Senator wedding" late in the week.

Senators Reid and McConnell have a fairly testy exchange on taking up the Supplemental, wherein the GOP objects to the bill as constituted. Senator McConnell indicates that the process he anticipates is another "take it or leave it" as presented by the Democrats (that is, taken up under a "fill the tree" process).

See House Amendment No. 2 and No. 3 for the controversial House-proposed text. (use your browser search function to find "Amendment No. 2" and "Amendment No. 3")


WH Policy Statement on H.R.6074 - to amend the Sherman Act to make oil-producing and exporting cartels illegal (a variety of NOPEC). A veto is suggested.


Senator Hatch piles on the judicial confirmation debate. More GOP venting, noise, smoke, and fury as a substitute for action.

Senator Leahy provides a come-back, and lays responsibility for the snail's pace of handling nominations at the foot of the White House. I couldn't disagree more - a proper response from the Senate on a controversial nomination is a reasoned VOTE and REJECTION, not stagnation and belly-aching.

-- 14:30 --

Senator Kennedy and his family are in my prayers. Miracles DO happen, and while I vigorously oppose his political objectives (and think he deserves legal jeopardy for Mary Jo - but that's mostly a shortcoming of the "justice" system), I sincerely hope and pray that he is restored to full health.

14:52: The nomination of Steven Agee to the 4th Circuit was CONFIRMED on a 96-0 vote. (predicted 14:54 and 94-0 confirmation)

-- 15:11 --

Message from the House (Supplemental) is read, and Senator Reid proposes a substitute in the form of S.Amdt.4789. Second degree amendment #4790, etc. is also proposed. "The tree is filled."

Senator Byrd asks and obtains permission to speak from his desk. He is distraught and shaken over the news regarding Senator Kennedy. He's in tears. It's a heart-wrenching delivery, about four minutes in length. [the Record has Senator Byrd saying "unlimited God," but he said "omnipotent God"] The Senate enters a quorum call.

Senator Byrd took a couple minutes to compose himself, then resumed speaking. He's on the subject of the Supplemental, and on the point of President Bush's veto of the last Supplemental, which included Iraq wind-down language.

20:07: Senate stands adjourned until 9:30 tomorrow. Senator Reid filed a cloture motion to limit debate on the Supplemental (H.R.2642), and that (the Supplemental) will be the business of the Senate when it resumes.


WH Policy Statement on H.R.2642 (comments aimed at the Senate). A no-holds-barred, will veto embedded within.

May 21

Check the calendar, formally pending legislative business includes two items:

House message to accompany H.R.2642, an act making appropriations for military construction, the Department of Veterans Affairs, and related agencies (the Supplemental)

--- AND ---

H.R.980 - An act to provide collective bargaining rights for public safety officers employed by States or their political subdivisions.


09:40: Morning business until noon, then resume consideration of H.R.2642, the Supplemental.

Cloture was filed on the amendment that relates to domestic spending, and that vote will occur sometime tomorrow (Rule XXII says one hour after the Senate opens).

Senator Reid is working on a time agreement relating to the budget resolution, which has a 10 hour time limit in any event. Senator McConnell is willing to debate on the budget today, and even vote on it today. He derides the DEM-proposed budget for its taxation and spending levels, and urges voting against it.


12:00: The Senate is so pressed for time that it's taken an hour to memorialize President Johnson. No doubt, seemed a good idea to somebodies.


12:30: I'm getting around to skimming yesterday's Record, and see that Reid substitute amendment #4789 (to the Supplemental) fell on a point of order. Another substitute amendment, #4803, was made pending. This amendment is the object of the cloture motion to limit debate on the Supplemental.

Link to text of Amendments #4803 and #4804, both of which are substantive, in the nature of alternative substitutes.

Senator Reid also intends to conduct a veto-override vote, relating to "the farm bill." He's jumping the gun, it hasn't been vetoed and returned to Congress yet, having been presented to President Bush yesterday.

And on the budget resolution ...

We also have now the budget conference report that has been filed. That was done this afternoon. Tomorrow I am going to ask consent that we move to that. There is a 48-hour rule. Under the 48-hour rule we can't get to that until Thursday at 4 o'clock. I think it would be to everyone's interest to see if we could get rid of that--I don't know if "get rid of" are the right words, but see if we can move on to that and adopt that report [on Wednesday].


Clearing the way for votes on FEC Commissioners, May 20 withdrawal of nomination ...

Hans von Spakovsky, of Georgia, to be a Member of the Federal Election Commission for a term expiring April 30, 2011, vice Bradley A. Smith, resigned, which was sent to the Senate on January 9, 2007.


Two bills made it onto the legislative calendar, second reading this morning. Maybe an indicator of future plans for legislative "action."

S.3036 - to direct the Administrator of the Environmental Protection Agency to establish a program to decrease emissions of greenhouse gases, and for other purposes.

S.3044 - to provide energy price relief and hold oil companies and other entities accountable for their actions with regard to high energy prices, and for other purposes.


Farm Bill veto message, from President Bush to Congress. The bill passed both chambers with overwhelming veto-proof majorities.

----- ===== -----

On the subject of trials of some prisoners held at GTMO, "The Wall Street Journal Gets It Wrong," by David Glazier, is a fairly detailed opinion piece. The GOP-lead Congress screwed up by not passing a Military Commissions bill PROMPTLY, and it had introduced proposed legislation as early as 2002. (maybe 2001, I have to check the Record). 2001 it is.

----- ===== -----

14:46: Senator Hatch notes that Congress has been working on FISA reform for over a year. This is the first "other than passing" mention of FISA, in the Senate, since this April 7, 2008 exchange.


15:55: Senator Gregg utters, "impending economic meltdown." He notes the US has 66 trillion dollars in unfunded liabilities in Social Security, Medicare, plus Medicaid; and that the current net worth of all assets in the US is about 45 trillion dollars.

Just print money. Nobody will notice.


19:45: Senator Ensign is reflecting on the genesis of the US Constitution. A decent reflection, albeit recited from reading, not from rote memory - and lacking comparison with the Articles of Confederation that it replaced. That comparison would REALLY hammer home the vision of a limited role for the to-be-formed federal government. Lesson long ago lost, my guess is the lesson and vision were lost around 1920.

May 22

The Senate entered a long-winded UC agreement yesterday, relating to votes on the Supplemental:

  • 2 hours of debate (no morning business)
  • Handle House Amendment #2, disposing of Reid amendment #4803, Webb GI bill, and House Amendment #2, in that order. Details:
    • Withdraw the cloture motion to limit debate on amendment #4803 and withdraw amendment #4804
    • Vote on amendment #4803 to House amendment #2, with a 60 vote threshold
    • IF Amendment #4803 to House amendment #2 is rejected,
      propose and vote on a new amendment (the Webb GI bill) to House amendment #2, with a 60 vote threshold
    • IF the Webb GI bill is rejected, the Senate will disagree with House amendment #2
  • Handle House Amendment #1, disposing of Section 11312, Committee Amdt.No.3, Committee Amdt.No.2, and House Amendment #1, in that order. Details:
    • Move to concur in House amendment #1, with an amendment that is Committee-reported Amdt. Nos. 2 and 3 on Iraq policy and funding
    • Subject Section 11312 of the proposed amendment to a Rule XVI point of order ("legislation on an appropriations bill"), decided on a simple majority (I think) [decided by chair, ruling of chair can be appealed to the body of the Senate]
    • Vote on Committee Amdt. Nos. 2 and 3 (with or without the language of Section 11312), with a 60 vote threshold
    • IF Committee Amdt. Nos. 2 and 3 (with or without the language of Section 11312) is rejected,
      propose and vote on Committee Amdt. No. 2, MINUS Section 11312, (drop Committee Amdt. No. 3), with a 60 vote threshold
    • IF that proposed amendment is rejected, the Senate will disagree with House amendment #1

Summary of House Amendments - stated in H. Rept. 110-636
From S.Amdt.4787, a provision addressing a returning worker exemption.

Sec. 11312. H-2B Nonimmigrants. (a) Short Title.--This section may be cited as the "Save Our Small and Seasonal Businesses Act of 2007".


The Congress sent President Bush an incorrect "farm bill," which means whatever he vetoed was a nullity in any event. The chattering class says that Congress has to take the bill up again, and pass it again -- but my sense is that all Congress needs to do is send what it already passed, so President Bush can veto what was already passed.

Mr. REID. I would now note for everyone within the sound of my voice, we are still having some problems with the farm bill because of the enrolling not having been done, as we understand it, in the House. They failed to enroll one section of the 15 sections. But we are going to deal with that tomorrow in some detail. And because of that, we will have to hold up doing the budget until we try to work something out tomorrow or at some later time.

So, if that's followed, the general order of business will be Supplemental, then "farm bill," then budget. My guess is that takes up the rest of the time before the Memorial day recess.


09:36: Senator Reid, in opening remarks, reversed the position that the budget would be set aside in favor of "a farm bill do-over."

After gaffe, Democrats planning to redo farm bill (AP)

The correct version would then be sent to Bush under a new bill number for another expected veto.

Anything done under a new bill number will have to go through legislative motions of being offered, "debated," and passed before being presented to the president.

10:14: The Senate took up and passed H.R.2419, "the farm bill redeux."

11:22: Hey, stranger! Senator Obama speaking from the floor of the Senate for a change.


11:42: The first of the stacked votes on the Supplemental gets underway.

12:06: Reid amendment #4803 to the Supplemental (C-SPAN2 calls this "domestic spending") was PASSED on a 75-22 vote. (60 votes needed to pass) (predicted 55-42 rejection at 12:05)

So, a veto-proof majority of the Senate has added domestic spending to a war supplemental appropriations bill. I think the Republicans WANT to lose in 2008.

Also, as a result of the vote outcome, the Webb GI bill was not considered. (I'd predicted 59-38 rejection at 12:20)

12:07: Section 11312 of a Senate amendment - a returning worker (immigration) exemption, was REJECTED when a "legislation on appropriations" point of order was sustained by the chair. (predicted 70-27 roll-call vote rejection at 12:40)

The House will receive the Supplemental with House amendment #2 as amended by Reid #4803, but that's not the end of the possible Senate amending process.

12:28: Reid amendment #4817 to House amendment #1 with House Committee Amdt. Nos. 2 and 3 (Iraq war policy provisions) was REJECTED on a 34-63 vote. (60 votes needed to pass) (predicted 55-42 rejection at 12:55)
Quite a few "interesting" cross-overs in this vote.

I'm going to change my prediction that #4818 will be rejected. I think it represents a back-room negotiated Senate position, and will pass with overwhelming support. These are the war funding clauses.

12:47: Reid amendment #4818 to House amendment #1 with House Committee Amdt. No. 2 was PASSED on a 70-26 vote. (60 votes needed to pass) (predicted 55-42 rejection at 13:10)

Not quite the "overwhelming" support I'd imagined 20 minutes ago, but easy passage.

Besides House amendment #2 as amended by Reid #4803, the Supplemental being sent back to the House has House amendment #1 as amended by Reid #4818 (likely a substitute, and certainly including House Committee Amdt. No. 2). That's the end of the Senate amending process in this round of handling the "war" Supplemental. (Without looking at the amendments, etc., I'd predicted outright and total rejection of House amendment #1. If I'd bothered to look, my guess would have been informed, and different.)


Senator Reid is trying to set up a 2:00 p.m. vote on a "farm bill" veto override. Following that, up to 6 hours of debate on the budget (S.Con.Res.70) with a vote this evening. An alternative to voting on the budget later today is to use the remaining debate time today, and hold the budget vote on the Tuesday after the recess.

12:51: The Senate agreed to the "farm bill" schedule, with the override vote at 2:00. It also agreed to defer the vote on the budget. Recess time! (after the 2:00 veto override vote).

13:57 - 14:47: President Bush's veto of "the farm bill" was OVERRIDDEN on a 82-13 vote, one senator voted "present." (two-thirds of votes needed to override) (predicted 75-17 override at 14:21)

Check out the duration of that vote. And the Senate was almost empty for nearly all of the time the vote was open. Last vote, Senator Biden at 14:47. Recess time, for sure.

The override does not encompass the missing "Title III" of the farm bill as passed, because Congress didn't send Title III to the White House. Congress intends to pass "Title III" (foreign aid relating to food) separately, and later.

Senator Chambliss isn't sure that the override is effective, on account of the "glitch" in sending the bill to the WH in the first place. It may need to be taken up again, and passed as a unit by both chambers. He's in favor of the bill, and the comment was made in reference to the process of passing a bill into law, not in criticism of the substance of "the farm bill."

Senator Harkin says a two week delay in correcting the glitch won't, according to the affected federal agencies, cause any disruption in the services they provide under the bill. Seems the presumption is that the farm bill isn't in fact "law" at this moment.


Senator Dorgan asked that the firefighters collective bargaining bill, H.R.980, remain the pending business of the Senate. This was objected to by Senator Vitter, on behalf of Senator Enzi.

--- 19:30 ---

S.3036 - Lieberman/Warner Climate Security Act of 2008 - objection would be heard if GOP was present, so Senator Reid files a cloture motion, with the cloture vote to occur at 5:30 p.m. on Monday next.

S.1965 - to protect children from cybercrimes - passed as amended.
S.2062 - to amend Native American fair housing act - passed as amended.
S.2420 - to encourage donation of excess food to non-profit organizations - passed as amended.
S.Res.563 - Sept 13 as National Childhood Cancer Awareness Day - passed.
S.Res.567 - Month June 2008 as National Internet Safety Month - passed.
S.Res.577 - Sense of Senate re: use of gasoline by federal agencies - passed.
S.Res.578 - Recognizing 100th Anniversary of founding of Congressional Club - passed.
S.Res.579 - Week of May 26 as National Hurricane Preparedness Week - passed.
Con. Res.85 - Use of Capitol Rotunda for a ceremony relating to Frank W. Buckles, the last surviving veteran of WWI - passed.
H.Con.Res.355 - Conditional adjournment and/or recess - passed.

19:40: Senator Reid explains that the delay in closing the Senate was due to trying to work out nominations, but, alas, the DEM proposal to approve 18 ambassadors and HUD head in exchange for obtaining 3 or 4 nominees of the DEMs choosing (actually, one in particular, important to one Senator) was not agreeable to the administration, so he sets up a series of pro forma sessions. Senator Reid says the Senate was ready to confirm 80 nominees, but could not reach agreement on what he refers to as an "inconsequential" appointment. Same old, same old.

He says this administration recalcitrance on nominations is partially a cause of voters rejecting Republicans. Speaking only for myself, I'm the reverse. The more the GOP acquiesces to, adopts, and blows smoke around bogus procedure, the less respect I have for the party.

Pro forma session time/dates ...

  • 10:30 Tomorrow
  • 9:15 Tuesday
  • 9:00 Thursday

The Senate is scheduled to come back to live session at 2:00 p.m. Monday, June 2nd. From 4:30 to 5:30, it will conduct debate on the motion to proceed to S.3036 - the Lieberman/Warner Climate Security Act of 2008. The cloture vote to limit debate on the motion to proceed is scheduled for 5:30.

See also S.2191 - the Lieberman/Warner Climate Security Act of 2007.

Senator Lieberman News Release of October 18, 2007 ...

Joining Lieberman and Warner in co-sponsoring ACSA are Senators Norm Coleman (R-MN), Tom Harkin (D-IA), Elizabeth Dole (R-NC), Benjamin Cardin (D-MD), Susan Collins (R-ME) and Amy Klobuchar (D-MN).

A grain of salt and so forth, a Heritage Organization piece, "The Economic Costs of the Lieberman-Warner Climate Change Legislation," is more informative of the anti-side than the Senate debate will be. I think the "pro" side argument is self-evident (but wrong), that global climactic catastrophe is inevitable if humans don't reduce their greenhouse gas emissions.

19:46: The Senate stands recessed per above.

May 23

The Lyin' Witch and the Wordy Rube

May 26

Regarding the general nominations impasse, the one that provoked Senator Reid to arrange the series of pro forma sessions, see this comment at HowAppealing.com. Senator Lamar Alexander put a hold on the Democrats choice of nominee to the board of the Institute of Peace (Ikram U. Khan) in retaliation for or to apply pressure to reverse the Democrats blocking of William H. Graves to the board of the Tennessee Valley Authority.

May 29

A week old, but interesting, Statement of Administration Policy on H.R.5658 - Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. "Will veto," over any one of a variety of measures being included.

May 30

Gitmo judge removed from Canadian's case (AP)

The chief judge for the Guantanamo tribunals, Marine Col. Ralph Kohlmann, dismissed [Army Col. Peter] Brownback and appointed a new judge for Khadr's case.

Khadr judge fired, says his military lawyer (CBC)

Brownback will be replaced by Col. Patrick Parrish

Pentagon fires Khadr judge (CBC) - May 29, 2008

At a May 7 hearing, Col. Brownback threatened to suspend the entire case over the prosecution's failure to hand over Mr. Khadr's Guantanamo confinement records ...

Navy Lieutenant-Commander Bill Kuebler [Khadr's chief military lawyer] ... believes the bulk of the prosecution's case ... will rest on statements the Toronto-born youth made once captured, and that proving interrogator abuse could negate the evidence.

Judge threatens to halt Khadr case (CBC) - May 7, 2008

Col. Brownback set a deadline for the handover of "Binder 2": "On the 22nd, you all will give them a copy of Binder 2. If you don't have it then at 1700 hours on the 22nd, we stop."

No doubt "Binder 2" was not turned over.

Canada complicit in Khadr prosecution, top [Canadian] court rules (CBC) - May 24, 2008

The Supreme Court of Canada, in its first pronouncement on the U. S. military unit at Guantanamo Bay, has concluded that Canadian officials participated in an "illegal" process when they shared information with the United States about terror suspect Omar Khadr.

The Canadian news services have a superior presentation of the facts, compared with the AP. The Khadr case is a real can of worms, and it is open. The US wants a conviction, and also to avoid any probing of the reliability/admissibility of evidence obtained under so-called "harsh" interrogation.

There was some debate in the Senate at the time the MCA was passed, about the clauses that pertain to the admissibility of evidence obtained under harsh interrogation.

Dallaire: Who are the real criminals in Omar Khadr's case? - May 23, 2008

In December, 2007, Colonel Morris Davis, then chief military prosecutor of the military tribunals, resigned in protest over such political interference. "It's a disgrace to call it a military commission," he said. "It is a political commission."

I would think Col. Davis would be at least stripped of his commission, and perhaps prosecuted under the UCMJ for his intemperate remark.

Additional material on the complex political/legal posture of the Khadr case:
Khadr case complexity deepens - Lyle Denniston - May 8th, 2008

May 31

"Times reporter subpoenaed for sources" - by Jennifer Harper (WaTimes)

Bill Gertz, national security reporter for The Washington Times, has been subpoenaed by a federal judge to reveal the [U.S. government] sources for a story he wrote more than two years ago about a Chinese spy ring in California. ...

"The government has informed the court that ... [t]he government is also investigating possible violations of 18 U.S.C. ยง 793 (unlawful communication of classified information) arising from various publications in the media about this prosecution," [U.S. Judge for the Central District of California, Cormac] Carney wrote in an order some 14 months ago. [Docket No. 406]

The context of the subpoena isn't clear to me from news reports. It seems to be a mix of the government investigating a leak that it finds objectionable (e.g., the leak to the NYT about the Terrorist Surveillance Program), and the court looking to preserve the secrecy of the grand jury investigatory function.

Court to Probe Alleged Leak In Military-Secrets Case
Sunday, November 26, 2006; Page A09 (WaPo)

A federal court plans to investigate whether government officials illegally supplied grand jury information in a U.S. military-secrets case to a Washington Times reporter. ... U.S. District Judge Cormac Carney said in court papers that the alleged violation "triggers the duty of the court to investigate further." [Docket No. 299]


The context of the subpoena is clarified by the court filings. My sense is that the government would NOT have investigated the leak to Gertz, unless it had been ordered to do so by the judge. The reference by the government that it was also looking into violations of the espionage act isn't relevant to the subpoena. The subpoena is PURELY in regard to the court's investigation into a clear violation of grand jury secrecy rules.

   CRIMINAL DOCKET FOR CASE #: 8:05-cr-00293-CJC
   Case title: USA v. Mak et al

   Date Filed      #       Docket Text
   11/20/2006      299     MINUTES (IN CHAMBERS) ORDER GRANTING IN PART 
                           AND DENYING IN PART DEFENDANT'S MOTION FOR 
                           DISCOVERY OR OTHER RELIEF RELATING TO 
                           GOVERNMENT MISCONDUCT [filed 10/06/06] by 
                           Judge Cormac J. Carney. 
                           Court Reporter: n/a. (ca ) 
                           (Entered: 11/22/2006)

   03/07/2007      406     MINUTES OF IN CHAMBERS ORDER by Judge Cormac 
                           J. Carney: Re: Government Investigation into 
                           Possible Rule 6(E) Violation (ln, ) 
                           (Entered: 03/12/2007)

   04/30/2008      701     SUBPOENA IN A CRIMINAL CASE issued 
                           as to William Gertz. (mt) 
                           (Entered: 05/02/2008)

   05/01/2008      700     MINUTES OF IN CHAMBERS ORDER REGARDING 
                           INVESTIGATION INTO RULE 6(e) VIOLATION 
                           by Judge Cormac J. Carney as to Defendant 
                           Chi Mak, Rebecca Laiwah Chiu, Tai Wang Mak, 
                           Fuk Heung Li, Yui Mak: Based on the content
                           of the 5/16 article and the Government's 
                           concession of an impermissible leak, the 
                           Court finds that the individual who leaked 
                           the grand jury information to Mr. Gertz 
                           violated Rule 6(e). Accordingly, the Court 
                           finds it necessary to subpoena Mr. Gertz 
                           to testify regarding the identity of the 
                           source that provided him with the grand 
                           jury information contained in the 5/16 
                           article. Pursuant to a subpoena issued on 
                           4/30/08, Mr. Gertz shall appear before this 
                           Court on 6/13/08 at 9:00 AM. (see document 
                           for further details (mu) 
                           Modified on 5/7/2008 (mu, ). 
                           (Entered: 05/01/2008)

   05/30/2008      709     EX PARTE APPLICATION for Leave to File 
                           Excess Pages as to Motion to Quash filed 
                           by NON-PARTY WITNESS William Gertz Filed by 
                           Plaintiff William Gertz as to Defendant Chi 
                           Mak, Rebecca Laiwah Chiu, Tai Wang Mak, Fuk 
                           Heung Li, Yui Mak (Attachments: 
                           # 1 Memorandum of Points and Authorities in 
                           support of Ex Parte Application, 
                           # 2 Declaration Declaration of Charles Leeper, 
                           # 3 Proposed Order Proposed Order, 
                           # 4 Proof of Service)(Cullen, Siobhan) 
                           (Entered: 05/30/2008)

   05/30/2008      710     ORDER RE: EX PARTE APPLICATION FOR LEAVE 
                           TO FILE EXCESS PAGES by Judge Cormac J. 
                           Carney: IT IS HEREBY ORDERED that the 
                           application 709 is granted and Gertz' 
                           Memorandum of Points and Authorities in 
                           support of his Motion to Quash may be up to 
                           50 pages in length, but hopefully less than 
                           50 pages in length. (mu) 
                           (Entered: 05/30/2008)


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