December 14, 2005

A bit late to the party...

[12:10 est]

The Senate was voting on a motion by Senator Carper (Delaware) on emergency family assistance spending. It's getting the support of quite a few Republicans, such as: Martinez (FL), Kyl (AZ), Smith, (OR), Collins (ME), and Frist (TN).

Yeas have it, 67-24, the motion to instruct the conference committee is passed.

[12:20]

Now Baucus is on to speak about his motion to instruct. The Senate is not in order he says. Murkowski (AK) is the presiding officer. She brings things to order. Baucus wears a black suit with a black and white tie. He is against the proposed Medicaid cuts. He calls them "harsh."

Senator Gregg (NH), the budget cmte. chairman, is on to debate it. The senate will be in order. Gregg says Medicaid will reach more people in a more effective way and doesn't see the House language as cutting people out.

The clerk calls the roll. [12:23]

Bond (MO) votes for it, along with a bunch of other Republicans. It sounds like a lot of Republicans, including Hutchison (TX) and Santorum (PA), are voting for it although Allen (VA) and Frist (TN) vote against it, along with various other Republicans including Sununu (NH). Wait, Frist just voted for it, apparently changing his vote.

At [12:44] the vote rolls along...

Yeas take it 75-14.

Now the Harkin (IA) motion to instruct the conference. John Thune (SD) is now presiding officer and tells Senators to take their convos off of the floor. Harkin is talking about cuts in the food stamps program. It's not waste fraud and abuse that the House cut out, he says, it's people who really need the food stamps. This is not the time to cut food stamps for people who are working and struggling to feed their children. He says he has fifteen republican senators who want the Senate language, not the House language. Gregg (NH) comes on and say we can address fraud waste and abuse without kicking people off of the food stamps rolls. He says people should vote no.

Clerk calls the roll. [12:50]

When the clerk calls out Bond's name you can hear someone say in the background, "No." The votes start to come in at 12:58. Sounds like plenty of Republicans are voting for it: Thune (ND), Hagel (NE) (who changed his vote, apparently).

Yeas have it 66-26. [1:08]

Hagel comes on and puts down a schedule for senators speaker after recesses. Senate has just recessed, will return at 2:15 est. It will return to the issue of Budget Cuts, and also perhaps the Patriot Act, after the recess.

[1:10 est]

In the meantime, this is the language of Patriot Act, § 215:

50 USCS § 1861 (2005)

§ 1861. Access to certain business records for foreign intelligence and international terrorism investigations [Caution: See prospective amendment note below.]

(a) Application for order; conduct of investigation generally.
(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
(2) An investigation conducted under this section shall--
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 [50 USCS § 401 note] (or a successor order); and
(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(b) Recipient and contents of application. Each application under this section--
(1) shall be made to--
(A) a judge of the court established by section 103(a) [50 USCS § 1803(a)]; or
(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code [28 USCS §§ 631 et seq.], who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

(c) (1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.
(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

The concern perhaps is that "clandestine intelligence activities" (see (a)(1)) might not have anything to do with terrorism. This term does not seem to be defined in the Act. Otherwise, this act gives the government the power to search & seize business records and other documents for the purpose of a foreign intelligence or international terrorism investigation. That does not seem too crazy. However, what are "clandestine intelligence activities"? Any person surveilling the federal gov't might be collecting intelligence in a clandestine way. What is this argument really about? People still want to feel free to make the case for a revolution. In other words, this debate really is about the way we think the government should handle domestic terrorism. The Bush Administration believes that the central, federal governemnt should handle domestic terror issues while those currently opposing this part of the PATRIOT Act believe domestic terrorism can be handled in other ways, e.g. through existing criminal laws. Currently under the PATRIOT Act clandestine intelligence activities are not protected from gov't search. But, really, if there ever were a revolution, it would be no holds barred anyway so what does it matter what the PATRIOT Act says? This is a debate about principals.

[14:15]

Senate comes back into session. Pat Roberts (KS) notes that the House has "passed the PATRIOT Act." The conference report is a compromise. The mark of a good compromise is that it leaves both sides unhappy. Personally, he's opposed to the sunsets. The Senate has found no abuse or over-reaching of the PATRIOT Act. If we've fixed these provisions, why is there need for additional sunsets? We have an oversight obligation already.

He focuses on the FISA business records provision (§ 215) and the national security letters (NSLs). Says critics say § 215 could be used for "fishing expeditions." Some want not just a relevant standard but facts tying the investigation standard to a foreign power or the agent of a foreign power, a so-called "relevance plus" standard. By the time FBI shows relevance plus he says, they've lost the benefit of § 215. Current standard is "relevance to an authorized investigation." [See (a) above] Is the scope of lawful investigation too broad? There is a presumption of relevance...and this is where critics are sinking their teeth. Conference report says records obtained in § 215 have to go through some sort of Attorney General minimization screning procedure. Roberts doesn't like this minimization procedure but he was willing to compromise on it. One current phone number connected to a one-year-old credit card receipt connected to...might be the information we need to discover a terrorist.

Now on to the NSLs. The CR makes three important modifications. Criminal penalties for noncompliance with NSLs. Clarifies how recipients of NSLs can seek judicial review if NSL is oppressive, or otherwise unlawful. He is concerned that disclosure that FBI has sought information might hinder investigation into espionage ring or terrorist cells. FBI needs these nondisclosure provisions. A terrorist who finds out he is being investigated might, in the worst case scenario, speed up the timetable for launching his attack. CR makes non-disclosure non-automatic, must now be invoked. Conferees didn't stop there. CR includes more oversight provisions, including public reporting on some of these investigative tools. 99.9% of FBI agents are not rogue agents, to whom we too frequently legislate.

[14:31]

He then started discussing national security subpoenas and wondered why invesigators of terrorists couldn't get them when investigators of health care fraud could. Then he spoke about how a National Security division would be set up in the Dept. of Justice.

Finally, he strongly opposes the idea of extending the current PATRIOT Act three months. He does not believe any more time will bring opponents and supporters any closer togther. He believes that more time and more negotiation will make the PATRIOT Act weaker. There has not been any abuse of the PATRIOT Act. Further compromise will negotiate away important tools. Terrorists continue to plot against us, seek to continue their war against us. I am deeply committed to the men and women of the intelligence community. He will vote for cloture* if it's necessary, he hopes it's not necessary. He yields the floor.

*Cloture is a vote to end debate in a deliberative body

[14:38]

Roberts suggested absence of a quorum. The clerk will call the roll. Mr. Akaka...

Senator Mikulski (MD) came on. [14:40] She has fifteen minutes. She's introducing legislation called Kendall Fredrick Citizenship Act of 2005. Someone from her district was killed by a roadside bomb on the way to become a citizen. He had joined the ROTC in high school. Joined military after high school. She says he was called by the botched bureaucracy of the U.S. gov't because he wasn't going the right way when he got killed. She is going to recite his story:

He was a mechanic assigned to a heavy combat battalion. He wanted to become an American citizen for awhile. (He had joined the Army without being a citizen?) You are fingerprinted when you join the army. He sent in his citizenship application but he checked the wrong box, saying he was not in the military. So the application was derailed three different times. Immigration sent the application to the wrong office, it should've gone to the office that fast tracks applications of military personnel. The Army let him in but Immigration wouldn't pass him. Try calling immigration. That's like calling from the Superdome in Katrina. Immigration wanted him to come home from Baghdad to get fingerprinted. His mom was like he's in freaking Baghdad getting shot at. His sergeant made arrangements to get him fingerprinted. He traveled in a convoy to go get his fingerprints and on the way a roadside bomb killed him. He got posthumous citizenship and was buried in Arlington.

The legislation I'm introducing today makes it easier for members of the military to become citizens. Persons in the military won't leave boot camp before being apprised of the citizenship process. If you're good enough to fight for this country, you're good enough to be a citizen of this country. There are about 3,000 military personnel with greencards. Her bill focuses on people who've been fingerprinted and passed an FBI background check. The act establishes a 1-800 number for troops trying to become citizens.

She notes the absence of a quorum. [14:52]

At 15:20 Sen. Carper (DE) has been speaking for awhile. He was talking about Iraq and Iraq policy. He suggested maybe we should sit down for some multilateral talks with Iran. There are 6,500 candidates running for election in Iraq. He predicts there will not be a majority government but there will need to be coalitions, not unlike what happens in Israel. He is now [15:27] talking about the ninth Delaware soldier to have died in Iraq, Shawn Moudy. He asked for a quorum call but then had it rescinded. He asked for several senators to be allowed time to speak: Clinton and Kennedy included.

Carper again notes the absence of a quorum. [15:30]

[15:36] Sen. Kennedy (MA) comes on. Tomorrow we'll have a series of votes giving instructions to our conferees on priority items. Including higher education. He urges a favorable vote on this by Republicans and Democrats alike. The resolution he proposes he says has received bipartisan support in committee. Talks about how many engineers Chinese universities will be graduating this year. How will we meet the challenges of globalization?

Then Sen. Clinton (NY) came on [15:43]. Talks about misplaced priorities of White House and Republican-majority Congress. She references New Orleans and more and more people falling below the poverty line. Job losses at GM, Ford, Delphi. And $8.1t debt. Budget lays bare priorities of Republicans: loophole tax breaks for oil companies. Choices that would give Ebeneezer Scrooge pause. Congress on verge of enacting fatally flawed budget plan. Budget plan written in full spirit of the grinch who stole christmas. Taking away housing grants and student loan benefits, e.g. The grinch saw the error of his ways, will this Congress? She calls it the grinch budget and says how we need to go back to pay-go. Budget continues erosion of work support program. She notes tax cuts that have not yet come into effect. We should establish fund for alternative energies by requiring oil companies to invest in alt. energy, require oil companies to help with heating bills this winter. Could eliminate $2.6b in new tax breaks oil companies get under this year's energy bill.

At [13:53] I gotta crash.

From my snooze at 17:30 or so I had heard Frist saying something about a cloture petition. So I got up but nothing seems to be going on until tomorrow, when Frist will bring the conference report before the Senate for a vote.

Now [17:48] Sen. Landrieu is on talking about how the federal government is more or less responsible for the Katrina damage. She stops mid-speech to ask for order. She has a photo out that depicts a gutted house and says that without federal action homes are gonna stay looking like this. What we've done so far is wholly inadequate. FEMA is not designed to meet this disaster, even with the best executives. Don't confuse sending money to FEMA with helping homeowners and businesses in the gulf coast. She then has a photo showing an older American sitting on a porch with a totally gutted house behind her. This is what a lot of people are going to be doing this Christmas. So she says, yeah the PATRIOT Act is really important, but there's other kinds of security we need to be legislating about. We're sitting around here passing 100 bills that have nothing to do with helping them. 28,000 thousand homes lost in Andrew, Charlie, Gene. But 275,000 homes destroyed by Katrina. We're helping businesses in Iraq, but we can't help our own American businesses. The White House cannot claim that more has been done in this disaster than in any other disaster. It may be true that more money has been moved through FEMA for this disaster than any other disaster... We cannot leave without a Cochran-Byrd Reallocation of the President's supplemental. We appreciate that money. Some of it has helped, but the rest of that money is to refurbish federal facilities. Let's take a look at this photo, this is what we want to refurbish.

At 16:09 Feingold comes on. But Harkin was slated to go next, so now he's on. Harkin is talking about food companies advertising to children. Green Shrek Twinkies, for example. Shrek has a powerful appeal to kids' minds. Shrek likes Twinkies so Twinkies must be OK to eat.

At about 17:40 Sen. Feingold came back on. He is stressing that he is not advocating repeal of any part of the PATRIOT Act. He is talking about the wall between law enforcement and intelligence operations. Feingold will fight the conference report with every ounce of strengh he has.

He wants to talk about the library provision. And, the now-infamous § 215. Gov't can get library records in domestic intelligence operations. Records do not need to concern someone connected to a terrorist or a spy. All the gov't has to say are the magic words. Then the FISA court is required to issue the order. Recipients of a records request are subject to a gag order. Attorney General says in op-ed in today's Washington Post that there have been no verified civil liberties abuses under this provision. But this is a secret court and receipients are gagged so how would we know if there were abuses? He says Senate judiciary cmte. came up with language saying a person's records couldn't be tapped unless it were shown that that person were connected to terrorism or espionage. It would prevent gov't from going on fishing expeditions into the lives of innocent Americans. The CR supplies a presumption of relevance of the records request to an authorized intelligence investigation. Relevance is a very broad standard. Senate bill requires gov't to satisfy one of three tests. CR only subjects request to relevance test.

Neither does CR provide for judicial review of the gag order. It doesn't give FISA court any latitude to consider whether the gag order should be automatic and permanent in every case. Two courts have found first Amdt. problems with similar statutes because they do not provide for individualized....

Moving on to other sections. Next a closely related provision. The national security letters (NSLs) (§§ 355 & 508). These are issued by FBI to businesses to obtain information. But here, the gov't does not have to go to the FISA court in order to issue these letters. Can only be used to obtain certain categories of business letters. Internet, phone usage, credit reports. Jewellers, car dealers, travel agents, casinos. Gov't must only certify that purpose is for investigation of terorrism or espionage. Could argue that the conference report makes the law worse. Does nothing to change the issuance standard. Are NSL's like grand jury subpoenas? If so, what's the big deal? There are two critical differences. In GJ investigation, request must be relevant to particular crime at hand. In sharp contrast, intelligence investigations are extremely broad. Anything could potentially be relevant. Relevance in intelligence operations is a very different standard thatn relevance in criminal investigations. Second, recipients of GJ subpoenas are not subject to secrecy orders. CR creates illusion of judicial review of NSLs. You can challenge the order but you have no way of telling what the gov't is telling the court in response to your challenge. It's very disturbing. What's the standard for getting the gag order overturned? You have to show that gov't acted in bad faith. This is a standard that's virtually impossible to meet. When you look behind the words in the statute, you realize that it's just a mirage.

Now to the sneak and peeks. Notice of the search is part of the standard 4th Amdt. protection. This is what gives teeth to the 4th Amdt's requirement of a warrant. Two courts have said notice must be given in seven days, unless renewed. Why can't the gov't go back and get an extension after 7 days? From the point of view of someone whose house has been secretly searched...there's a big difference between seven days and a month. What if the gov't searched the wrong house? They'd fear someone had broken in. Should we make that person live in fear for a month?

Feingold yields the floor at 17:28 and notes the absence of a quorum.