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Does the modified Audit the Fed amendment of Bernie Sanders do the job?

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

We probably need to better define what “the job” to be done is, to definitively judge the worth of the original Sanders Audit the Fed amendment as compared to what’s in the modified version that suddenly appeared Thursday. Ron Paul clearly does not think that the modified (or original?) Sanders amendment does “the job,” based perhaps on the limits of language like this in existing law governing the Government Accountability Office (GAO):

(b) Under regulations of the Comptroller General, the Comptroller General shall audit an agency, but may carry out an onsite examination of an open insured bank or bank holding company only if the appropriate agency has consented in writing. Audits of the Board and Federal reserve banks may not include—

(1) transactions for or with a foreign central bank, government of a foreign country, or nonprivate international financing organization;

(2) deliberations, decisions, or actions on monetary policy matters, including discount window operations, reserves of member banks, securities credit, interest on deposits, and open market operations;

(3) Except as provided under paragraph (4), an officer or employee of the Government Accountability Office may not disclose to any person outside the Government Accountability Office information obtained in audits or examinations conducted under subsection (e) and maintained as confidential by the Board or the Federal reserve banks.

(4) This subsection shall not–

(A) authorize an officer or employee of an agency to withhold information from any committee or subcommittee of jurisdiction of Congress, or any member of such committee or subcommittee; or

(B) limit any disclosure by the Government Accountability Office to any committee or subcommittee of jurisdiction of Congress, or any member of such committee or subcommittee.

The original Audit the Fed amendment of Bernie Sanders would have changed all of that to read:

(b) Under regulations of the Comptroller General, the Comptroller General shall audit an agency, but may carry out an onsite examination of an open insured bank or bank holding company only if the appropriate agency has consented in writing. Audits of the Federal Reserve Board and Federal reserve banks shall not include unreleased transcripts or minutes of meetings of the Board of Governors or of the Federal Open Market Committee. To the extent that an audit deals with individual market actions, records related to such actions shall only be released by the Comptroller General after 180 days have elapsed following the effective date of such actions.

That change is not made in the modified Sanders Audit the Fed amendment. However, for what’s it worth, as far as I can tell the original amendment nowhere explicitly directed the GAO to audit or focus on foreign central bank or other foreign transactions by the Fed.

So… What did Bernie Sanders – or at least, White House lawyers, working with Federal Reserve lawyers, working with Banking Committee staff lawyers, working with Bernie Sanders and his staff – change, of significance, between his original “Audit the Fed” amendment (SA 3738) and his “modified” Audit the Fed amendment introduced, in the midst of floor debate, on May 6, 2010?

Well, to begin with, he (or they) rather comprehensively redrafted the Audit the Fed amendment, at least in part to leave the existing language of the underlying Dodd/Lincoln bill (technically, a substitute amendment, SA 3739) unmolested. As a result, no language of the underlying Dodd bill/amendment is now being changed by the modified Sanders Audit the Fed amendment (instead new language is being tacked on to it).

For example, Dodd is proposing the following new authority under the audit powers of the Government Accountability Office, in a new subsection (f), of Section 714 of Title 31 of the U.S.Code [see here for the updated current version of that section of the law, which is the same law from which I quoted subsection (b) above]: Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/132_does-the-modified-audit-the-fed-amendment-of-bernie-sanders-do-the-job

District Judge Robertson’s Slahi Guantanamo habeas decision exposes the defiant federal-power-centralizing agenda behind the Al Bihani habeas ruling of D.C. Circuit Judges Brown & Kavanaugh

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

In a clear and thoughtful decision issued March 22, 2010, that was declassified with redactions this Friday, April 9, Federal District Judge James Robertson granted the habeas corpus appeal of Guantanamo detainee Mohamedou Ould Slahi (referred to in the decision as Mohammedou Ould Salahi), a Mauritanian who has been imprisoned at Guantanamo Bay Naval Base since 2002.

But not just “imprisoned,” as Andy Worthington points out, helpfully filling in some of the censored and undetailed portions of the record, beside a rare photograph of Slahi:

Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his Combatant Status Review Tribunal at Guantánamo in 2004.

After he was seized, he was transferred by the US to Jordan — one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 — where he was held for eight months, and where, he said, what happened to him was “beyond description” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks, and arrived in Guantánamo on August 4, 2002.

As the “highest-value detainee” at Guantánamo — in the days before Khalid Sheikh Mohammed and 13 other “high-value detainees” were flown in from secret CIA prisons in September 2006 — Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”

After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”

However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.'”

In the process of ordering Slahi’s release from American military custody, D.C. District Judge Robertson exposed the twisted logic and misinformed reasoning of a key, but clearly erroneous as to the laws of war, political agenda-driven January 5, 2010 holding of the majority on a three-judge panel of the D.C. Circuit Court of Appeals, in the Al Bihani Guantanamo habeas corpus appeal. [That’s the appellate decision where a panel majority of Janice Rogers Brown and Brett M. Kavanaugh brazenly asserted that the presidential war powers authorized and invoked by Congress, via the 2001 Authorization for Use of Military Force, are not limited or governed by the international laws of war, and that went so far as to claim that “the international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. . .therefore while the international laws of war are helpful to courts, [they] lack controlling legal force.”]

Old Bailey photo by John Linwood, at flickr.com

Justice atop the Old Bailey in London

Judge Robertson deftly exposed the mendacity of the Al Bihani decision’s reasoning, even as he himself was forced to adher to that flawed higher court precedent. A flawed appellate court precedent that – unless and until overturned – now governs all habeas corpus appeals brought by Guantanamo prisoners, who may only be heard in the district court in Washington, D.C. that’s governed by the D.C. Circuit Court of Appeals – and thus by the specious reasoning of such unsound and unjust opinions as that of the Brown/Kavanaugh Al Bihani panel majority. Their decision to uphold as lawful the detention of Al Bihani (a citizen of Yemen, likewise detained since 2002 at Guantanamo Bay) was concurred in as to the result, but challenged as to its dismissive interpretation and understanding of the law of war, by Senior Circuit Judge Stephen F. Williams.

Robertson’s carefully-balanced decision, while acknowledging that Slahi himself admits to having been a sworn member of Al Qaeda in the early 1990s, found – more than six months after the first merits hearing on Slahi’s appeal, which itself took place years after Slahi first officially challenged the basis of his detention in federal court – that the Executive Branch failed to prove that it was simply more likely than not that Slahi is and was legally detained by the United States government, resulting in an order for the release of Slahi, which the Obama administration immediately moved to appeal in the D.C. Circuit.

Some of the important logic and reasoning of Robertson’s decision: Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/245_judge-robertson-slahi-guantanamo-habeas-decision-exposes-defiant-power-centralizing-agenda-behind-al-bihani-ruling-of-d-c-circuit-judges-brown-and-kavanaugh

Dennis Kucinich will now help the Democratic caucus further entrench and glorify the modern, autocratic American presidency

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

The present day existence of a benevolent autocrat, or limited Monarch, in all but name, in place of the Constitutional American presidency, didn’t come about merely because of the (national media-promoted) submission and excessive deference to Presidents eager to overreach on secretive matters of foreign and military policy by the other two, now-atrophied, branches of government (meaning the Article I Legislative Branch, and the Article III Judicial Branch).

It came about, at least equally, and most recently, because of the grossly-irresponsible abandonment by Congressional committees of almost all meaningful Executive Branch oversight, and because of the ceding of the power and duty of the Legislative Branch of government, to write and prioritize major domestic legislative policy for our nation, to the head of the Executive Branch of government. A ceding of power that amounts to a voluntary, unConstitutional hand-over of the power of self-government entrusted to our representatives to one man independently elected (whose job can’t be threatened, absent impeachment, by Congress) – not to represent constituents, nor to write or pass legislation, but rather to implement the law, and to veto new legislation he disapproves of, while supervising the operations of the sprawling Executive Branch of government and our military chain of command.

"A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. all delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either." — Thomas Paine, Rights of Man [1791-1792]

Assumed "power without a right." That, please note, is what Dennis Kucinich, within the last week, and especially today, has openly declared to be the proper order of the American government, in the person of the American president, and Kucinich will now be unthinkingly cheered on by many misguided Americans and Congressional colleagues who’d rather follow than question powerful authority figures, no matter how corrupt and dishonest those unchecked authorities may be. [In large part because, as David Swanson rightly notes in his new diary: "I think the corporate media has instilled in people the idea that presidents should make laws…"]

The following is part of what Dennis Kucinich recently said to Amy Goodman, telegraphing the basis on which he would soon publicly abandon his independent will, and his own better judgement, as a federal representative – speaking of the President’s Senate-endorsed private health insurance-underwriting bill:

"I’ve always been able to try to find a way to work things out. But, you know, it’s a two-way street. The White House has a responsibility to produce a bill that is worthy of supporting. And you can’t say it’s taking a step in the right direction if what you’re doing is taking a step towards increasing privatization of the healthcare system." – Dennis Kucinich, 3/11/2010

Less than a week later, this is what Dennis reportedly said today at his news conference (if there’s a transcript, I haven’t seen it):

The previous meeting was at the White House. I was there with a bunch of people who supported the bill. I left it with a sense of compassion for our President and what he’s going through with this. Regardless of anyone’s position, we have to be compassionate towards those called upon to make decisions for this nation. […] Basically, [the President] said this is the bill. […] I hear from my constituents a real desire for the President to succeed. I’ve been bothered by the attempts to delegitimize his Presidency. […] But we have to be very careful that the potential of the Presidency not be destroyed by this debate. And even though I have many differences on this policy, there’s something much bigger [riding] on this debate for America.Dennis Kucinich, 3/17/2010

Which seems to be very much in the same vein of his earlier comment, in viewing and deferring to the President as a burdened and put-upon benevolent autocrat charged with overseeing and ruling the nation’s people, by way of their stand-ins in Congress, who are duty-bound to merely rubberstamp the Monarch’s will once (privately or publicly) made known to them, if he’s of the same Party.

The truth that Amy Goodman and Juan Gonzalez should have pointed out to Rep. Kucinich: CONGRESS has the "responsibility to produce a bill that is worthy of supporting," and which actually does what it claims to do, on this and every other issue. FULL. STOP.

Dennis Kucinich is accidentally right when he concludes that "there’s something much bigger [riding] on this debate for America." Tragically for this nation, however, that "something" is self-government of, by, and for the people, and Kucinich’s decision today helps push that self-government even further away from our one and only federal Congress in Washington, D.C., in favor of "the potential of the [increasingly all-powerful, self-aggrandizing modern] Presidency," no matter the particular man (or Party) presently in power, the awesome but unexercised "potential" of our Legislative Branch of government be damned.

Read the rest of this entry »

Permanent link to this article: http://debatingchambers.com/239_dennis-kucinich-will-now-help-democratic-caucus-further-entrench-glorify-modern-autocratic-american-presidency

Senate Parliamentarian: Thank you for answering selise's questions [A second working thread about forcing the (real) filibuster]

As originally posted in the reader-diary section of Firedoglake.com; the post’s detailed and lengthy 2010 comment thread is available at that link.

Welcome, again, readers and commenters. Your input and feedback, however major or minor, is invited. No question is too obvious, no confusion too petty to mention here. Thank you to all those who participated in the discussion in the earlier thread.

Our first formal working thread on this issue, started last Friday, is available here. There’s a lengthy introduction there, and a lot of detail in the comments, for anyone wondering what this is all about.

Since the comments closed on that thread sometime late Monday, and the Senate Parliamentarian’s office is scheduled to be open today, Tuesday, selise and I thought that another working thread would be in order, until we finally receive (we hope) the definitive answer(s) we’re looking for, and selise is ready to post her Seminal diary based on those answers.

Meanwhile, this was how selise’s first round with a staffer in the Senate Parliamentarian’s office went, on Friday afternoon (the office was apparently closed for four and a half days due to the record D.C. snowfalls):

I was able to connect with the Senate Parliamentarian’s office late yesterday afternoon although I had only a very short moment to talk, and I think so did the person I spoke with (understandable given the week DC has had).


The question I attempted to ask was, of course, about any Senate rules, starting with the two-speech rule, that could be used to put limits on an older-style, debate-based filibuster. There was a bit of confusion, because I apparently wasn’t clear enough that I wasn’t talking about a debate under cloture (alternatively, it may have been that the person I was talking with couldn’t imagine that possibility). When we, I hope but am not sure, got that bit cleared up, he said, regarding the two-speech rule he thought it was probably not workable because, if I understood correctly, it would be hard to enforce. I tried to ask why, but all he said was because of precedent. So of course I asked for a reference on that (which precedent?), but he didn’t have one for me. I ran out of time and I don’t think he was that interested in talking with me — unfortunate, but understandable.


At least I know now that the office should be open next week, and I’ll hope for a better conversation then. – selise, 2/13/10

I’ll try to briefly refocus below on where we are most in need of feedback from the Senate Parliamentarian, after the discussions in the first working thread’s comments.

Working backwards, I left a question hanging at the close of that thread that I think will need to be directly addressed by someone in the Senate Parliamentarian’s office:

Does it stand to reason, or is it logically the case, that actions considered by precedent to be Senate "business" for the purpose of calling another quorum (see list @ comment 65) – and for which the action of a Senator who has been recognized by the Presiding Officer is required – would likewise be considered (first) "speeches" under the two-speech rule – even if the Senator only executes such an action, without saying more – when that Senator is next recognized to speak on the pending question?

If that sounds like Greek to you, I’m sure you’re not alone. That question is part of an effort to, in effect, prove a negative: That, contrary to the conventional wisdom, there isn’t an easy way for a filibustering minority to avoid physically-taxing debate on the Senate floor, by shifting most of the burden of a real filibuster (as opposed to a non-filibuster cloture delay) to the majority.

The allegation that’s been widely made, once the obvious errors in the superficial conventional wisdom case (that a real filibuster is impossible today) are pointed out, is that there are multiple ways for a filibustering Senator (even during a real filibuster) to easily and painlessly avoid debating or speaking by, in particular, gaming the so-called "two-speech rule" that otherwise appears to limit him or her (as enforced by points of order by the majority) to only two speeches per legislative day (meaning, in effect, per filibuster) on the pending question (a bill, an amendment, certain motions, a conference report, a nomination).

A minority trying to shift much of the burden of the filibuster to the majority comes into conflict with the limits imposed by the two-speech rule in various ways.

For example, waiting until some qualifying (as defined by Senate precedent) Senate "business" – which doesn’t include "debate," or "discussion," or making of parliamentary inquiries, or suggesting the absence of a quorum – has been conducted, in the midst of their filibuster, is one requirement that a filibustering minority would need to repeatedly meet each time they wanted to force certain majority-inconveniencing votes or actions (like requesting a live quorum call, which requires 51 majority Senators to present themselves in the chamber to prevent a filibuster-aiding adjournment, or votes on motions to adjourn and motions to recess). But, because of the two-speech rule, if all or most of that qualifying Senate "business" (at least the "business" actions that directly involve a Senator, like offering amendments or making motions or unanimous consent requests) itself qualifies as a "speech" under the two-speech rule and its precedents – even if the Senator says no more than the absolute minimum needed to effect one of those "business" actions – the minority’s opportunities to inconvenience the majority, and make a mockery of both the "two-speech" and "intervening business" rules and precedents, would be drastically reduced (normal tactical moves of each side in a real filibuster excepted).

That’s what my question is getting at. The relative lack of Senate precedent directly addressing the issue leads me to believe that, if such credibility-risking actions were to be undertaken by a supposedly-principled minority forced to actually filibuster in the name of ‘needing more debate,’ they would quickly be reined in by new precedent, if not by existing, long-practiced Senate custom. The same lack of precedent guidance seems to indicate that such a Senate precedent-abusing practice, even if theoretically possible, has not been used in any significant way in real Senate filibusters since 1873.

So that’s one of the key questions we need answered or clarified by the Senate Parliamentarian.

We also need confirmation of the following flat impediment (whether or not this "business" action is itself considered a "speech") to one seemingly-available endrun – at least at a cursory glance, or in the absence of a majority actively contesting a real filibuster – of the two-speech rule, which seems to be evident from Senate rules and precedent:

Amendment, offering of: Can be blocked in multiple ways (to avoid providing the minority with serial opportunities to restart the "two-speech" clock), but most comprehensively by the Majority Leader "filling the (amendment, and maybe motion-to-recommit) tree" before the filibuster begins. [I’ve given lengthier explanations about this elsewhere, most recently here.]

This problem of ‘proving a negative’ as a result of the lack of proof offered by the conventional wisdom case that we’re challenging is itself part of a larger effort to officially rebut widespread claims that – as I wrote in the first working thread diary – the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today under the existing rules.

I yield the floor.

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.” Riddick’s Senate Procedure

Permanent link to this article: http://debatingchambers.com/234_senate-parliamentarian-thank-you-for-answering-selise-questions-a-second-working-thread-about-forcing-real-filibuster

Senate Parliamentarian: Please pick up the citizen inquiry phone… [A working thread for selise about forcing the (real) filibuster]

As originally posted in the reader-diary section of Firedoglake.com; the post’s detailed and lengthy 2010 comment thread is available at that link.

Welcome, readers and commenters.

This ‘working thread’ diary is in furtherance of what amounts to a direct challenge to, and hoped-for dismantling of, one pernicious aspect of the conventional wisdom that’s preached far and wide by the powerful in Washington. Specifically, the aspect of conventional wisdom that claims that the 1930s-era "Mr. Smith Goes to Washington"-style filibuster has somehow been rule-changed out of existence in the modern United States Senate, or is otherwise unfeasible, pointless, or impossible to conduct today.

It’s a working thread where informed and engaged citizen selise hopes – five days after she first started to try to contact him/them in the midst of historic D.C. snowfalls – to finally hear the Senate Parliamentarian’s take on the current feasibility of restoring and forcing the classic real physical filibuster in the Senate. And to hopefully confirm whether or not it is indeed possible (as I’ve asserted) to do so without need to either violate the rules (the "nuclear" option in its various forms) or to change the rules as they presently exist. As part of the drafting process for her own pending Seminal diary that will report on what she’s learned from official sources about the reality of today’s Senate rules as they apply to the real filibuster.

Selise and I and others here at FDL have been actively debating this point for some weeks or months now, have noted the many, often-misleading, takes of others around the blogosphere, and, increasingly of late, tangential comments from Senators themselves, and now selise would like to write a clear and definitive account that even the conventional wisdom-peddlers might have to heed, and which people just tuning in for the first time will be able to grasp. [Altogether, no small task, that…]

Speaking for myself, my interest in a return to the real, physical filibuster is not necessarily in being able to speed (bad, or even good) legislation through the Senate. [Yes, counter-intuitively perhaps, that could very well be the effect of the return of the real filibuster, as compared to the use of the delay-enabling, supermajority-instigating Rule 22 cloture process that’s constantly deployed by the majority to avoid mere threats by the minority to (supposedly) conduct physically-demanding filibusters.] It is also very much not my purpose to enable a simple majority to force its will on the minority at any and every opportunity, without consultation (as is basically, and regrettably, now done in the House), though that too could conceivably become easier to do.

Instead, what I, and I think selise, most want to demonstrate is that there is no present obstacle to the return of routine, simple-majority passage of legislation in the Senate today. No "60 votes" needed. No "67 votes" needed. No rules violation and thus no "nuclear" (in the Republican-majority era) or "Constitutional" (in the Democratic-majority era, as slightly modified) option needed. No rules change at all needed. No cloture motion or cloture vote necessary. Not even any reconciliation bill needed.

What’s needed instead? The courage and resolve of their convictions from majority proponents of legislation, a numerical simple-majority in favor of a proposal, and the will to join, on the Senate floor or off, or at least to endure, genuine public debate on sometimes politically-"tough" and emotionally-loaded subjects, which a real, physical filibuster, if forced to develop (by the withholding of cloture motions), might foster.

Because the alternative to exposing this truth, if it is a truth – the objective of selise’s upcoming diary is to try to ascertain its veracity – is to watch legislation continuing to be unnecessarily modified, and presidential nominations withdrawn, to please an unnecessary supermajority in the Senate – a supermajority that is not needed for the passage of legislation or nominations, so long as the majority is capable of waiting out any real, physical filibusters that may develop.

Ideally, of course [though probably not for rabid partisans allied, formally or informally, with those powerful politicians who control the Parties in Congress], that simple Senate majority first works with that minority, within the democratic confines of the Senate – in public, Democratic-majority committee meetings, and on the floor – without fearing genuine debate, or good faith input from that minority. So that reaching the stage of even a threatened filibuster, never mind a real one, becomes a rare occurrence in the Senate. And so that the segregation by Party recedes even as the Democratic majority maintains and wields the balance of power that the 2008 voters gave the Senate, when minds are being made up and votes are being cast in pre-markup discussions, and on amendments and bills and nominations and conference reports. That objective may (or may not) be furthered by restoring the real possibility that the majority may (force itself to) face the bracing tonic of a genuine, physical filibuster, conducted live on C-SPAN. But for the sake of the added, focused debate alone, it certainly seems worth a shot.

That’s a general summary of the many detailed comments, and a diary or two, that I’ve posted on this subject here, saying the same thing or something similar, in many different ways. So many detailed comments that I’ve started to lose track of which questions readers trying to understand this issue first have on the subject, or want answered, or find the most indecipherable. That’s where readers and commenters and selise’s pending diary come in: No question is too obvious, no confusion too petty to mention here. Lay it on us in the comments, and you will help us to understand what you need to understand, what we may need to further understand about the subject, and how best to shape a coherent explanation of the present state of affairs in the Senate. I’ve publicly asserted this case without being absolutely positive I’m right (since it’s a bit akin to proving a negative), and may thus be publicly proved wrong, but want to be proved wrong, sooner rather than later, if I am wrong.

Without further ado, I’ll post this diary and open the floor to selise to take it away as she sees fit.

Permanent link to this article: http://debatingchambers.com/232_senate-parliamentarian-please-pick-up-citizen-inquiry-phone-first-working-thread-for-selise-about-forcing-real-filibuster

Anatomy of a Backroom Deal’s Public Face: The case for letting Congress do the legislating on health care reform

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

In an effort to demonstrate that there is no lack of ideas or will available for the task of health care reform in Congress, if Members are left to their own devices, this diary documents all that was left ‘on the Congressional cutting room floor’ in favor of privately-negotiated, top-down, autocratic deals generated by, and deferring to, the President, his appointees, and the corporate benefactors of America’s two national political Parties.

Wholesale, unquestioning deference to leadership by sheep pens-full of our federal legislators, clustered and bleating together by Party, has been able to thwart the will of most of those (non-leadership) members of the United States Congress of both Parties with ideas of their own on health care reform, because of a Democratic Party leadership that has been allowed to prevent substantive productive debate and deliberation from taking place on the House and Senate floors to improve the legislation.

I contend that simple-majority passage of a genuine health care reform bill is still possible, even without reconciliation, provided that:

A. Democratic Party caucus members stand up for their individual prerogatives as elected representatives of the people, and for their Party platform, despite White House-generated Party leadership pressure to be “loyal” to the Party and its funders rather than to the American people, and

B. Democratic Party caucus members in the Senate insist that their Majority Leader cease his excessive use of the cloture motion, and default instead to real filibusters, while allowing both majority and minority members of the body genuine input into, and the ability to actually change (given simple-majority support), in public, the health reform legislation on the floor, if not in committee.

That same dynamic – otherwise known as “legislating” – would help (the country, if not the Party wars) on every other legislative proposal and Executive nomination yet to be considered by the 59-member Senate Democratic caucus, including policy matters unrelated to the budget, for which reconciliation is not an option. [Reconciliation itself originally being a way of taking Party politics out of “tough” votes to reduce the deficit, by getting around politically-motivated filibusters, real or threatened.]

1. The “Administration” speaking this month (pre-Massachusetts):

Backstage bargains like these kept the [health reform] plan afloat, but at the price of extinguishing some of the best ideas for reducing costs. The White House is unapologetic. “Let’s be honest,” said Rahm Emanuel, Mr Obama’s chief of staff: “The goal isn’t to see whether I can pass this through the executive board of the Brookings Institution. I’m passing it through the United States Congress with people who represent constituents.” That attitude, shot back Bill Galston, one of the slighted think-tank’s senior fellows, all but guaranteed that Congress would duck the hard issues.

2. According to the author of a health care reform amendment adopted by a committee of the House:

“An amendment [authored by Dennis Kucinich] which would have protected the rights of states to pursue single-payer health care was stripped from the [House] bill [by Speaker Pelosi] at the request of the Administration.”

3. At this link are summary descriptions of the 200+ floor amendments filed on this major health reform bill by some of our 435 House Representatives – including many Representatives unable to otherwise influence the bill because they don’t sit on one of the three House committees that marked up the legislation [Education and Labor with its 49 members, Ways and Means with its 41 members, Energy and Commerce with its 59 members]. Yet every one of those amendments was summarily dismissed by the House Rules Committee, except for Stupak/Pitts and a doomed-to-fail Republican leadership “substitute” amendment, and thus never reached the floor of the House for debate or a vote by our Representatives – likely “at the request of the Administration,” but certainly at the direction of the Speaker of the House who has been given iron-fisted control over the Rules Committee (and thus the ability to completely shut down meaningful floor debate and floor amendments, at her sole discretion) in and by the modern House. [A House where the sheep herd continues to dutifully obey commands from on-high, without complaint, while everyone busily points fingers at the Senate.]

[Ironically, the only genuine debate in the House on their “historic” health reform legislation, outside of the three committee markups of the legislation, took place in the small Rules Committee meeting room in the Capitol – where a tiny minority of members engaged each other for more than 10 hours while the Speaker was busy in backroom negotiations with Stupak/Pitts and others, and thus had not yet decided what decree to issue to the Rules Committee (with the sycophantic approval of tuned-out sheep like Earl Blumenauer of Oregon, who fielded a call at home from Speaker Pelosi that night even as his Republican colleague from a huge district in eastern Oregon was doggedly making his case in person to the Rules Committee for relief for rural America, to no avail). The Rules Committee members played their acting roles well, and pretended to listen – the Republican members even meaningfully engaged the witnesses and thus helped ignite genuine debate – to the impassioned arguments of those colleagues who had taken the trouble to come to plead their hopeless cause, as though the majority members were actually independent actors not in thrall to the Speaker. All they asked is that the committee vote to simply allow their amendment(s) to be heard on the House floor – to no avail, save for the few led by Stupak who bravely called the Speaker’s bluff, and were prepared to challenge the Party hierarchy. As soon as the last witness was finished speaking, staffers handed forward to the Chair the multi-page blue document containing the Rule (Jim McGovern sat in for Louise Slaughter, who, along with every other Democratic female, had fled the scene due to the Stupak/Pitts amendment language), with copies for every member, and Rep. Hastings proceeded to read the Speaker’s decree that one, and only one, Democratic amendment on the health reform legislation would reach the House floor, whereupon the remaining Democrats present quickly rubberstamped the Speaker’s decree en masse without comment. Later that day the House dutifully proceeded to “debate” and pass both the Speaker’s Rule and the “historic” legislation in one day’s time (consisting of only four hours of general floor debate on the bill by the 435 members of the House, plus 1.5 hours in advance of votes on the only two amendments made in order, in addition to a single motion to recommit, plus another hour of debate on a separate “doc fix” bill, and the hour of debate on each Rules Committee rule that provided for the disgracefully-limited floor debate time and amendment opportunity on the two pieces of legislation).]

4. Senate Amendment [SA] 2786, filed by Majority Leader Harry Reid on November 19, 2009 (shortly before the Senate’s week-long Thanksgiving break), was the first amendment offered – in the form of a substitute – on the shell bill from the House (H.R. 3590, an unrelated taxing-power bill that the Reid substitute amendment would wholly replace except for title and number) used by Reid as the vehicle – in place of the actual House-passed health reform bill (H.R. 3962) – to present his merged Senate committee product (text available here) to the Senate floor for (supposedly) good faith debate and amendment. Proposed floor amendments to the Reid substitute amendment shortly thereafter began being filed by Senators of both Parties.

5. On December 8, 2009 alone, 78 proposed amendments were submitted on the Reid substitute amendment, beginning with SA 3001 proposed by Senator Hagan (providing for “Improvement in Part D Medication Therapy Management (MTM) Programs”), and ending with SA 3078 proposed by Senators Klobuchar and Snowe (establishing the “Young Women’s Breast Health Education and Awareness Requires Learning Young Act of 2009”). Text of all 78 amendments is available here.

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Stunning Reporting by Harper’s Horton: Eyewitness Accounts Expose the Cover-up of an Apparent Triple Murder of Prisoners by CIA?/Navy MPs?/JSOC? at Guantanamo

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link. On May 9, 2011, Reporter Scott Horton, Editor Roger D. Hodge, and Harper’s Magazine received the 2011 American Society of Magazine Editors’ National Magazine Award in the Reporting category, for the referenced “The Guantanamo ‘Suicides'” article – an award that “honors reporting excellence as exemplified by one article or a series of articles.” An interview with Scott Horton about the National Magazine Award is available here, and some subsequent attempts to discredit Horton’s reporting about the suspicious prisoner deaths are comprehensively rebutted here. In October, 2011, a documentary – “Death in Camp Delta” – that Norwegian filmmaker Erling Borgen spent three years making about one of the prisoners who died in Guantanamo on the night of June 9, 2006 – young Saudi Yasser Al-Zahrani – launched in Oslo. In November, 2011, this important follow-up related to Horton’s reporting was posted by Almerindo E. Ojeda, the principal investigator for the Guantánamo Testimonials Project, of the University of California at Davis Center for the Study of Human Rights in the Americas. And on March 1, 2012, Jeffrey Kaye posted a lengthy article at Truthout, pulling together many scattered strands of evidence, including details from newly-released DOD reports, that raises new and  disturbing questions about two other prisoner “suicide” deaths at Guantanamo – of a 34-year-old Saudi man in May, 2007, and a 31-year-old Yemeni man in June, 2009. (Among many other details, Jeff notes in that article that former Guantanamo guard and Army Staff Sergeant Joseph Hickman – the key on-the-record source for Horton’s original work – is due to publish a book this fall about what he witnessed at Guantanamo in 2006.)

An apparent triple murder that – thanks to Scott Horton’s absolutely devastating, searing, and comprehensive account in the upcoming March Harper’s Magazine, available in an on-line advance feature, as quickly highlighted at FDL by Spencer Ackerman – is at least no longer “covered up.”

Harper’s vivid account was made possible by the conscience of one soldier – Sergeant Joe Hickman – who came forward upon Barack Obama’s inauguration a year ago, and tried to go through proper ‘channels’ to reawaken allegiance to the rule of law, and humanity, in the United States Executive and Legislative Branches of government, apparently to no avail.

Drawing from on-the-record interviews with four Army guards on duty at Camp Delta in Camp America the night of June 9 through the morning of June 10, 2006, the night the three prisoners died, and making good use of satellite photos to turn the government’s prying eyes back on itself for a change, Scott Horton shreds multiple ‘state secrets’ shielding our unchecked Executive Branch, that have successfully hidden for more than three years the inexcusable abuse and apparent murder of three uncharged foreign prisoners – from Saudi Arabia and Yemen – long held in our military prison at Guantanamo Bay Naval Station:

One day, while on foot patrol, [camp guards] Hickman and Davila came across the compound. It looked like other camps within Camp America, Davila said, only it had no guard towers and it was surrounded with concertina wire. They saw no activity, but Hickman guessed the place could house as many as eighty prisoners. One part of the compound, he said, had the same appearance as the interrogation centers at other prison camps.

The compound was not visible from the main road, and the access road was chained off. The Guardsman who told Davila about the compound had said, “This place does not exist,” and Hickman, who was frequently put in charge of security for all of Camp America, was not briefed about the site. Nevertheless, Davila said, other soldiers—many of whom were required to patrol the outside perimeter of Camp America—had seen the compound, and many speculated about its purpose. One theory was that it was being used by some of the non-uniformed government personnel who frequently showed up in the camps and were widely thought to be CIA agents.

A friend of Hickman’s had nicknamed the compound “Camp No,” the idea being that anyone who asked if it existed would be told, “No, it doesn’t.” He and Davila made a point of stopping by whenever they had the chance; once, Hickman said, he heard a “series of screams” from within the compound.

Hickman and his men also discovered that there were odd exceptions to their duties. Army guards were charged with searching and logging every vehicle that passed into and out of Camp Delta. “When John McCain came to the camp, he had to be logged in.” However, Hickman was instructed to make no record whatsoever of the movements of one vehicle in particular—a white van, dubbed the “paddy wagon,” that Navy guards used to transport heavily manacled prisoners, one at a time, into and out of Camp Delta. The van had no rear windows and contained a dog cage large enough to hold a single prisoner. Navy drivers, Hickman came to understand, would let the guards know they had a prisoner in the van by saying they were “delivering a pizza.”

Sound like the script for a Hollywood movie about a Third Reich detention camp? It should, because that’s exactly how it reads, including all-too-real chilling details like these:

At approximately 11:45 p.m. [June 9, 2006]—nearly an hour before the NCIS [Naval Criminal Investigative Service] claims the first body was discovered—Army Specialist Christopher Penvose, preparing for a midnight shift in Tower 1, was approached by a senior Navy NCO. Penvose told me that the NCO—who, following standard operating procedures, wore no name tag—appeared to be extremely agitated. He instructed Penvose to go immediately to the Camp Delta chow hall, identify a female senior petty officer who would be dining there, and relay to her a specific code word. Penvose did as he was instructed. The officer leapt up from her seat and immediately ran out of the chow hall.

Another thirty minutes passed. Then, as Hickman and Penvose both recall, Camp Delta suddenly “lit up”—stadium-style flood lights were turned on, and the camp became the scene of frenzied activity, filling with personnel in and out of uniform. Hickman headed to the clinic, which appeared to be the center of activity, to learn the reason for the commotion. He asked a distraught medical corpsman what had happened. She said three dead prisoners had been delivered to the clinic. Hickman recalled her saying that they had died because they had rags stuffed down their throats, and that one of them was severely bruised. Davila told me he spoke to Navy guards who said the men had died as the result of having rags stuffed down their throats.

Who did this? We still don’t know. Members of our Central Intelligence Agency (CIA), or of the Pentagon’s Joint Special Operations Command (JSOC), or possibly seven members of the naval military police, who another prisoner (Shaker Aamer), thankfully still alive, and fluent in English, swore beat him brutally for more than two hours the same night:

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Let the C-SPAN cameras in, Democrats [The Party’s "Open Government" bluff just got called]

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2010 comment thread is available at that link.

On December 30, 2009, C-SPAN’s Chairman and CEO Brian Lamb made the following written offer to House Speaker Nancy Pelosi, House Minority Leader John Boehner, Senate Majority Leader Harry Reid, and Senate Minority Leader Mitch McConnell:

The C-SPAN networks will commit the necessary resources to covering all of these [health reform bill House/Senate] sessions ["all important negotiations, including any conference committee meetings"] LIVE and in their entirety.


Now that the process moves to the critical stage of [conferencing or merging bills] between the two Chambers, we respectfully request that you allow the public full access, through television, to legislation that will affect the lives of every single American.

Multiple national outlets are reporting today on Lamb’s offer, five days after it was made, and a day after anonymous leaks from Congressional staff (and original FDL reporting about on-the-record remarks by the powerful Henry Waxman) asserted that no formal conference would be held between the House and Senate, or by appointed, accountable conferees, on this major piece of legislative policy, that’s in dramatically different form after passage by the House and Senate.

Is there a chance, at long last, to get the "mainstream" national media to focus on the paucity of, and maybe even to promote, open, democratic process in our House and Senate, thanks to C-SPAN’s extremely-helpful and timely offer? Lamb’s offer could be a game-changer, on multiple fronts, depending on how it is covered, how it is responded to, and how that response is then queried by media reporters and bloggers. [That focus and game-changing may have already begun, based on the defensive responses – including the claim, contrary to Waxman’s Sunday comments, that no decision has yet been made about bypassing a formal conference – by the House democratic leadership in a press conference today at which they were asked about the C-SPAN letter.]

I noted in a comment here yesterday some of the differences between a formal conference committee between House and Senate, which includes both Democrats and Republicans (a process that, unfortunately, under both Parties, has been increasingly transformed into nothing but a single public rubberstamp for private deals dictated by Party, often at the behest of the White House), and the planned non-conference, wholly-private, Party-directed, off-the-record negotiation, which – not for the first timeremoves the voices of every American represented by a Republican Member of Congress from the negotiation process. See also the formal Senate rules for (the bypassed-in-spirit, if not letter) conference committees, their "open meetings" and conference reports, here.

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"Debating" health care reform: Party abuse of Senate procedure serves the President and concentrated power at the expense of the People

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2009 comment thread is available at that link.

Why hasn’t there been a vote on a health care-related amendment on the Senate floor since last Tuesday, although the Senate has been in public session since, on Wednesday, Thursday, Friday, Saturday and Sunday, and hundreds of amendments, from members of both Parties, have been filed on the bill, with only a dozen or so given the opportunity for a vote to date?

Premise: The leadership of the Democratic Party in Congress – especially in the Senate – is, and has been, allowing, encouraging and/or tolerating the wholesale dictation of legislative policy by the Executive Branch to the independent Legislative Branch on the health reform bill, while using extreme secrecy to try to hide their actions from the public, and even from fellow Members of Congress.

And those Party leaders are now trying to force that Executive Branch-created and blessed legislation through the Senate and House essentially unchanged, and promoting it as a Party product, rather than letting America’s federal legislature as a whole create its own product. [Cue the incredulous partisan-war-fueling "Party of No" cliches or, alternatively, the exasperated sighs of no kidding.]

You may think that such power-driven and power-motivated abuse of regular order and democratic process is a good thing, if your pet policy (or your job) happens to align with the private will of the President and/or his most-powerful appointees, but such back door, unchecked concentration of legislative power in the Executive’s hands is an extremely dangerous thing for this nation and its separation of federal powers.

Does the U.S. Senate exist to serve the President and the Party, or to serve the American people?

The most recent public manifestation of this secret process, from Friday, 12/11/09’s Congressional Record:

Mr. McCAIN. Could I ask my friend about the situation as it exists right now? Right now, no Member on this side has any idea as to the specifics of the proposal the majority leader, I understand, has sent to OMB for some kind of scoring. Is that the way we want to do business, that a proposal that will be presented to the Senate sometime next week and voted on immediately–that is what we are told–is that the way to do business in a bipartisan fashion? [Never mind a democratic fashion – a word McCain can’t quite bring himself to speak… -ed.] Should we not at least be informed as to what the proposal is the Senate majority leader is going to propose to the entire Senate within a couple days? Shouldn’t we even know what it is?

Mr. DURBIN. I would say to the Senator from Arizona, I am in the dark almost as much as he is, and I am in the leadership. The reason is, because the Congressional Budget Office, which scores the managers’ amendment, the so-called compromise, has told us, once you publicly start debating it, we will publicly release it. We want to basically see whether it works, whether it works to continue to reduce the deficit, whether it works to continue to reduce the growth in health care costs.

We had a caucus [late Wednesday afternoon] after this was submitted to the Congressional Budget Office, where Senator Reid and other Senators who were involved in it basically stood and said: We are sorry, we can’t tell you in detail what was involved. But you will learn, everyone will learn, it will be as public information as this bill currently is on the Internet. But the Congressional Budget Office has tied our hands at this point putting it forward. Basically, what I know is what you know, having read press accounts of what may be included.

Mr. McCAIN. Could I ask my friend from Illinois–and by the way, I would like to do this again. Perhaps when he can get more substance into many of the issues.

Mr. DURBIN. Same time, same place tomorrow?

Mr. McCAIN. I admit these are unusual times. But isn’t that a very unusual process, that here we are discussing one-sixth of the gross national product; the bill before us has been a product of almost a year of sausage-making. Yet here we are at a position on December 12, with a proposal that none of us, except, I understand, one person, the majority leader, knows what the final parameters are, much less informing the American people. I don’t get it.

Mr. DURBIN. I think the Senator is correct, saying most of us know the fundamentals, but we do not know the important details behind this. What I am saying is, this is not the choice of the majority leader. It is the choice of the Congressional Budget Office. We may find that something that was sent over there doesn’t work at all, doesn’t fly. They may say this is not going to work, start over. So we have to reserve the right to do that, and I think that is why we are waiting for the Congressional Budget Office scoring, as they call it, to make sure it hits the levels we want, in terms of deficit reduction and reducing the cost of health care.

It is frustrating on your side. It is frustrating here. But I am hoping, in a matter of hours, maybe days, we will receive the CBO report.

[By the way, is any reporter going to ask the White House or Majority Leader Reid whether anyone at the White House knows what Reid sent to CBO…?]

While the backroom sabotage of the public legislative process has been underway this week on a couple of fronts (because the Party needs a "win" at any cost, and doesn’t dare let representative democracy work its will if the President has other ideas), the finger-pointers of the Senate have been quarrelling about whose Party team is to blame, or who deserves more credit for the inaction on the Senate floor.

Meanwhile, those Senators actually trying to publicly legislate in the best interests of the American people are stymied and obstructed. Even, unbelievably, name-called by anonymous Senate insiders as ‘in it for themselves’ simply because they’re trying to do their jobs like adults on behalf of the American people, while privileged to be among the relative few empowered to act on our behalf in our independent Legislative Branch of government.

Byron Dorgan, whose prescription-drug-importation amendment is the most-recent Democratic amendment called up for debate from the hundreds of filed amendments that sit idling, speaking last Tuesday, 12/08/09:

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Senator Dianne Feinstein, November, 2009: "I basically believe the medical insurance industry should be nonprofit, not profit-making." [As she recounts the 100-year history of the American medical insurance system]

As originally posted in the reader-diary section of Firedoglake.com; the post’s 2009 comment thread is available at that link.

Thank you, Senator Feinstein, for during your homework, and for sharing the results, and your humane and compassionate conclusions, with us from the Senate floor Monday (11/2/09):

Mrs. FEINSTEIN. Mr. President, since most people have some form of health insurance, I decided, after many calls from constituents who have said to me: I can’t afford a 20-percent increase in my medical health insurance premium; I had a 10-percent one last year, I began to look into the history of the medical insurance industry in America. I have come to the floor to discuss the current state of the private, publicly-[traded], for-profit health insurance industry and the ways this system must be changed during health care reform. Bottom line: Our country is the biggest health care spender in the world. In return, we get very average results.

It wasn’t always this way in America. I wish, for a moment, to briefly review the history of health insurance in our country. Because understanding its development and its transition to the for-profit, commercial health insurance model is actually critical to this debate.

The story began to take shape about 90 years ago. There were very few health insurance plans before the 1920s. As a matter of fact, there was not much in the way of medical services to insure. Options for medical care were primitive by today’s standards. In 1900, the average American spent $5 each year on health care-related expenses. This amounts to roughly $100 in today’s dollars. Health insurance was not necessary because the cost of care was low. Over 90 percent of medical expenses were paid out of pocket. Most patients were treated in their homes, and medical technology and treatment options were very limited. The earliest private health insurance plans in the United States were fairly basic agreements, primarily sponsored through employers or unions. Employers deducted funds from participating workers’ salaries and contracted with local physicians for treatment.

During the 1920s, medical technology was advancing and the treatment of acute illnesses shifted from homes to hospitals. But on the heels of the Great Depression, an increasing number of Americans were unable to afford medical services, which were becoming more costly. In 1929, the Baylor University Hospital developed a plan to guarantee affordable treatment options for patients while ensuring a steady stream of revenue for the hospital. According to author Paul Starr, the Baylor plan provided up to 21 days of hospital care and certain services to 1,500 local teachers in Dallas, TX, for $6 a year or 50 cents a month, if we can believe it.


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