Category Archive: Lawmakers in Action

Launching, 3..2..1..: Citizens As “Enemy Combatants”

Since posting my last on-line diary preceding this one, in October, 2011 (as reposted just below this diary on the Home Page), some crucial developments and milestones in the American courts and Congress have transpired, that are deserving of all the attention we can give them. Thankfully, many others were on the case, speaking and writing with conviction and passion to anyone who would listen – which, predictably, didn’t include most of our incumbent elected representatives. As I catch up on some of the on-line contributions I missed over the last 3-4 months, and take the helm of the new DebatingChambers site, I plan to update this launch-post (or a subsequent post) with links to some of that important commentary and analysis. Meanwhile, in this post I’ll try to highlight the path down which recent inhumane actions of public officeholders in our Congress and federal judiciary are taking us, with help from the far-reaching perspective provided by an important new piece of habeas corpus scholarship.

Last month, of course, saw the tolling [the link is to a powerful and insightful piece in the National Law Journal by U.S. Army Major Todd Pierce, of the DOD’s OMC/Office of Chief Defense Counsel] of the disgraceful tenth anniversary, on January 11, 2012, of the opening of an American military prison in Cuba, that was deliberately designed (obviously, very successfully) to evade both the restrictions of domestic American law and any restrictions nominally imposed by the “law of nations” and its subsidiary “law of war,” on the treatment and disposition of its prisoners. While the month before that, there was, and is, the Buck McKeon/Carl Levin National Defense Authorization Act (NDAA) of 2012, now Public Law 112-81, after President Obama signed it into law on December 31, 2011 [in text or pdf format, when the law is available at the GPOffice, which it [now, on 3/30/12] is not at this time, in either format; meanwhile see this link for the final bill text].

In particular, there’s the section of that mammoth piece of NDAA legislation entitled “Detainee Matters” – in Subtitle D of Title X of Division A of the version that first passed the Senate 93-7 on 12/1/2011 – which was adopted, in final Conference Report form, 283-186 in the House on December 14th, and 86-13 in the Senate on December 15th. [Though the House/Senate conference report had only been issued on December 12th, five days after the House conferees had been appointed on 12/7 (Senate conferees were appointed on 12/1).]

Here’s how the Congressional Research Service summarized the version of the language that 93 incumbent Senators voted to adopt on 12/1, in Carl Levin’s Senate version of the bill, S. 1867 (which came out of the Senate Armed Services Committee that Levin chairs, on 11/15/11, without a written report – after being marked-up by the Committee in closed session last June); see also H.R. 1540, and earlier CRS summaries of the legislation [my emphasis and bracketed/indented comments]:

Subtitle D: Detainee Matters

(Sec. 1031) Affirms that the authority of the President to use all necessary and appropriate force pursuant to the [2001 (Public Law 107-40)] Authorization for Use of Military Force includes the authority for U.S. Armed Forces to detain [somewhere] covered persons pending disposition under the law of war. Defines a “covered person” as a person who: (1) planned, authorized, committed, or aided the terrorist attacks on the United States of September 11, 2001, or harbored those responsible for such attacks; or (2) was part of or substantially supported al Qaeda, the Taliban, or [unspecified] associated forces that are engaged in hostilities against the United States or its [unspecified] coalition partners. Requires the Secretary to regularly brief Congress on the application of such authority.

  • Back on November 1, 2011, Steve Vladeck described this section very well, writing: “In one fell swoop, the NDAA thereby severs the requirement that detention be tied to a group’s responsibility for the September 11 attacks; overrides international law by authorizing detention of individuals who may have never committed a belligerent act; and effectively converts our conflict against those responsible for September 11 into a worldwide military operation against a breathtaking array of terrorist groups engaged in hostilities against virtually any of our allies.”  (Just as the Executive Branch has been advocating in Guantanamo habeas cases for years, with the full-throated support of a radical D.C. Circuit Court of Appeals – the only lower appellate court to which they must answer in these cases; no “circuit splits” possible. This profoundly-consequential  decision was made after exactly how many open, public – or even “closed” – hearings were convened, about the new, unbounded 2011 NDAA-AUMF, by the Senate Armed Services Committee, or by any other Senate committee of jurisdiction??) – pow wow

(Sec. 1032) Requires U.S. Armed Forces to hold in custody [somewhere…] pending disposition a person who was [according to whom…?? That‘s where the whole problem began and begins, with Army Regulation 190-8** having been shredded by 2002 presidential decree (see Comment 9)… – pow wow] a member or part of al Qaeda or an [unspecified] associated force and participated in planning or carrying out an attack or attempted attack against the United States or its [unspecified] coalition partners. Authorizes the Secretary to waive such requirement in the national security interest. Makes such requirement inapplicable to U.S. citizens or U.S. lawful resident aliens. Outlines implementation procedures.

  • **Army Regulation 190-8, in part: “b. A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.” This regulation implements, in practice, for the U.S. military (or did, until breached by decree of President Bush in 2002), a specific, legitimate source of “law of war” authority under the U.S. Constitution: i.e., Article 5 of the Senate-ratified 1949 Geneva Convention relative to the treatment of POWs (Convention III). In the same way, the Uniform Code of Military Justice enacted by Congress – in place of the Articles of War – implements, in practice, many of the other legitimate sources of law-of-nations/“law-of-war” authority that empowers government actors, under the ratified (and thus supreme U.S. law) 1949 Geneva Convention treaties. – pow wow

(Sec. 1033) Prohibits FY2012 DOD funds from being used to transfer any individual detained at Naval Station, Guantanamo Bay, Cuba (Guantanamo) to the custody or control of that individual’s country of origin, other foreign country, or foreign entity unless the Secretary [of Defense] makes a specified certification to Congress, including that the transferee country or entity is not a state sponsor of terrorism or terrorist organization and has agreed to ensure that the individual cannot take action to threaten the United States or its citizens or allies in the future. Prohibits any such transfer if there is a confirmed case of an individual who was transferred to a foreign country and subsequently engaged in terrorist activity. Authorizes the waiver of such prohibition in the national security interest.

(Sec. 1034) Prohibits FY2012 funds from being used to construct or modify any facility in the United States or its territories or possessions to house any individual detained at Guantanamo for purposes of detention or imprisonment by DOD, unless authorized by Congress. Provides an exception.

(Sec. 1035) Directs the Secretary to submit to the defense and intelligence committees procedures for implementing the periodic Guantanamo detainee review process required under Executive Order.

  • Which procedures, however, as the enacted law now states in black and white, “shall” “(1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee’s law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;” (Just possibly because it’s pretty much by definition a war crime – a “grave breach” of the Geneva Conventions – for the U.S. to have shipped non-combatants to Guantanamo…; we begin now to see why a colluding Congress will only discuss these matters behind closed doors.) – pow wow
    [See the Implementing Guidelines PDF released in early May, 2012.]

(Sec. 1036) Directs the Secretary to submit to such committees: (1) procedures for determining the status of [the already-deemed (somehow…, still without benefit of AR 190-8 minimal due process, in open defiance of the unenforced “law of war” language) unprivileged enemy belligerent] persons detained pursuant to the Authorization for Use of Military Force, and (2) any modifications to such procedures.

  • “…for purposes of section 1031.” Meaning that this section also covers military prisoners beyond Guantanamo (at our off-shore Devil’s Islands).  But see this mile-wide exception that swallows the rule for the entire prison population of Guantanamo, as passed into law in the final version of H.R. 1540 (Section 1024): “(c) Applicability- The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.”  An exception that – thanks to the 2008 Anthony Kennedy-authored Boumediene decision, which belatedly began to police the separation of powers – now encompasses all Guantanamo prisoner “persons.”  [If only nominally so, due to the D.C. Circuit’s deliberate undermining of Boumediene’s habeas provisions, in its ongoing effort to replace the presumption of innocence for the accused, with the “presumption of regularity” for the assertions of government-agent accusers.]  This Guantanamo exception does not appear to have been included in the version of the law passed by the Senate on December 1, 2011. – pow wow
  • (4/22 Update) On April 5, 2012, as Daphne Eviatar of Human Rights First noted in an April 18th analysis, “[T]he Defense Department quietly sent a report to Congress indicating how it intends to implement” this section (Sec. 1024) of the 2012 NDAA, for non-Guantanamo prisoners in U.S. military custody. As Daphne’s post indicates, under the new DOD regulation (and in stark contrast and conflict with still-on-the-books Army Regulation 190-8), the first status determination review by a military judge will be permitted to be postponed for three years after the foreign prisoner comes, unimpeded by lack of lawful due process/review or authority, into U.S. military custody. This military judge “review” is a crude Executive Branch-operated approximation of the ongoing, glacially-slow, government-burden-shifting Guantanamo habeas corpus hearing process in the D.C. District & Circuit federal courts – which was finally instituted and conducted as a mistake-remedying solution years after the established fact of military incarceration of foreigners who’d been denied due process and the law-of-war’s default POW status and treatment.  Thus the new DOD NDAA regulation will, in practice, ask a U.S. military judge to decide whether or not he must reverse a decision previously made by a U.S. military commander, and order a foreign citizen released after three years of non-POW detention in a U.S. military prison, in this case because belatedly determined not to be detainable under the terms of Section 1021 of the 2012 NDAA (Sec. 1031 of the Senate bill). [With “international law” and all that jazz, including Third Geneva Convention Article 5’s due process requirements and default POW treatment of military prisoners until a neutral status determination/review is made, having been dispensed with by the U.S. Congress & President (implicitly by the former, explicitly by the latter, beginning with President G.W. Bush).]  As Daphne concludes: “The Obama administration had an opportunity to make clear that it takes due process rights and international law seriously [unlike the U.S. Congress], and that, as the war in Afghanistan winds down, it plans to bring indefinite military detention without meaningful review, charge, or trial to an end. It just passed up that opportunity.” – pow wow

(Sec. 1037) Allows a guilty plea as part of a pre-trial agreement in capital offense trials by military commission.

These are the seven incumbent Senators who resisted peer pressure, heeded their consciences, and honored the Constitution by voting No on passage of the above language in S. 1867 on 12/1/2011 (the same seven, joined by six more Senators, also voted No 12/15 on the final Conference Report version):

Tom Coburn (R-OK), Tom Harkin (D-IA), Mike Lee (R-UT), Jeff Merkley (D-OR), Rand Paul (R-KY),  Bernie Sanders (I-VT), & Ron Wyden (D-OR).

Having been left to his own devices by his Caucus colleagues, and with oversight of the Armed Services a thing of the past in his committee, Carl Levin’s made the most of it, quickly picking up where he and the Senate left off last spring, in refusing to respect or honor the Constitutionally-mandated process for taking this nation to war. And, before that, in sneaking the Military Commissions Act of 2009 through in the huge FY 2010 Defense Authorization Act (which first passed the Senate, as S. 1391, by a vote of 87-7, and prompted my first FDL reader-diary, in July, 2009, entitled “Senators who lie, Senators who let them”). Two years later, and still the vast majority of incumbent United States Senators, perhaps especially those who share Levin’s Party membership, are incapable of challenging, or are too cowardly to challenge, Levin’s misrepresentations and calculating, back-room sleights-of-hand about domestic and international law – as he, with partners from both Parties, continues to use the power of his legislative office to steadily institutionalize an ever more-powerful, unchecked, and unaccountable presidency.

Very much related to the new, D.C. Circuit-parroting provisions of the 2012 NDAA legislation is the following excerpt (which I trust is within fair use limits, because of the comprehensive length of the original), from an extremely valuable and timely 117-page review of the origins and implementation of the writ of habeas corpus, and its two suspensions, in this nation, which was just published by the Harvard Law Review. It’s an impressive example of the sort of scholarship that should have preceded, but obviously didn’t, the evidently-rushed, end-of-term 2004 Supreme Court opinion in Hamdi (an opinion cited repeatedly by Levin – see below – to justify his NDAA detainee provisions), which makes excellent use of the available accounts of contemporaneous Congressional debates. [Hamdi’s oral argument audio is here; in this diary I transcribed a key portion of that argument.] Read the rest of this entry »

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The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link. In Comment 51 of that thread, I detail how the War Powers Resolution’s Constitutionally-derived limits of “national emergency” defensive “hostilities” [undertaken, and/or reported as specified in 50 USC § 1543(a)(1)] – which trigger the 60-day clock of the War Powers Resolution (WPR) – were simply ignored in the president’s letter to Congress about his war on Libya. That sort of bad faith presidential evasion of the War Powers Resolution should be recognized by Members of Congress for what it is, and be challenged, until an overdue rewrite or revocation of the WPR is in place. Comment 51 also includes an excerpt from a paper explaining why “what the President constitutionally needs from the United States Congress, he cannot get from the United Nations Security Council.”

United States Constitution, Article I, Section 8:

The Congress shall have power . . .

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Professor Jules Lobel, in prepared testimony testimony to an April, 2008 House Foreign Affairs subcommittee House Foreign Affairs subcommittee:

The Article I congressional power to declare war is not limited to the formal power of issuing a declaration, nor to authorizing full-scale wars, but was intended to give Congress the power to decide whether the United States should initiate any offensive military hostilities, however big or little, or for whatever purposes.9

[Footnote 9: See, e.g., Bas v. Tingy, 4 U.S. 33, 35-36 4 Dall. 37, 40 (1800) (Washington J.) (“every contention by force, between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”).]

Moreover, to the extent there is any doubt as to the meaning of the Declare War Clause, the clause immediately following it gives Congress the power to “grant letters of Marque and Reprisal.” In the 18th century, Letters of Marque and Reprisal had two meanings. The first, now obsolete, referred to authorization given to private merchantmen to fight the enemy. Second, and still relevant today, letters of marque and reprisal referred to imperfect wars, special wars, limited wars, reprisals — all of which constituted hostilities that were something less than full-scale war.10 For example, both Alexander Hamilton and Secretary of War James McHenry advised President John Adams in 1798 that any use of American naval force beyond repelling attack on the nation’s seacoast, armed vessels or commerce within American waters, “comes within the sphere of reprisals and . . . requires the explicit sanction of that branch of the government which is alone constitutionally authorized to grant letters of marque and reprisal.”11

Professor Michael Ramsey, writing at on March 23, 2011:

Does the Libya intervention amount to a “war” in constitutional terms? Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.” International law writers of the time expressed similarly expansive definitions. Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course.


Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.


If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power. James Wilson told the Pennsylvania ratifying convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”

War powers expert Louis Fisher, in a 1998 paper co-authored with David Gray Adler:

The meaning of the war clause was thus settled at the dawn of the republic. The word “declare” enjoyed a settled understanding and an established usage. As early as 1552, the verb “declare” had become synonymous with the verb “commence.” They both mean the initiation of hostilities.31 This was the established usage in international law as well as in England, where the terms declare war and make war were used interchangeably.

This practice was familiar to the Framers. As Chancellor James Kent of New York, one of the leading jurists of the founding period, stated: “As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.” While Kent interpreted “declare” to mean “commence,” he did not assert that the Constitution requires a congressional declaration of war before hostilities could be lawfully commenced, but merely that it be initiated by Congress. What is “essential,” according to Kent, is “that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprize neutral nations of the fact.”32 Thus, Congress need not declare war. All that is required under American law is a joint resolution or an explicit congressional authorization of the use of military force against a named adversary.

Louis Fisher in written testimony for a January, 2007 Senate Judiciary Committee hearing:

The breadth of congressional power is evident simply by looking at the text of the Constitution and comparing Article I to Article II. The powers expressly stated give Congress the predominant role in matters of war. However, this purely textual reading misses what the American framers did, why they did it, and how they broke with the reigning British models of executive power. Their study of history led them to place in Congress the sole power to take the country from a state of peace to a state of war. They left with the President, in his capacity as Commander in Chief, certain defensive powers to “repel sudden attacks.”


The framers carefully studied this monarchical model and repudiated it in its entirety. Not a single one of Blackstone’s prerogatives was granted to the President. They are either assigned entirely to Congress (declare war, issue letters of marque and reprisal, raise and regulate fleets and armies) or shared between the Senate and the President (appointing ambassadors and making treaties). The rejection of the British and monarchical models could not have been more sweeping.

With that as background, here’s what the United States Senator who presently chairs the powerful Armed Services Committee read aloud, from prepared opening remarks for a March 8, 2011 full committee hearing March 8, 2011 full committee hearing [only a placeholder page for that hearing remains on the SASC website since the site’s makeover in 2012 or 2013] convened “To receive testimony on the Department of the Navy in review of the Defense Authorization Request for Fiscal Year 2012 and the Future Years Defense Program” (informally, the “Navy posture hearing”) – at about 27 minutes into the recording of the hearing, a few minutes into his opening statement:
Read the rest of this entry »

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Obama DOJ heads to appeals court hearing Thursday to fight to maintain Congress’s (judge-defined-and-enjoined Bill of Attainder) ACORN funding ban

As originally posted in the reader-diary section of; the post’s 2010 comment thread is available at that link. On Friday, August 13, 2010 [“As Corrected” September 7, 2010 (see Appendix A)], the Second Circuit appellate panel of Roger J. Miner, José A. Cabranes, and Richard C. Wesley overturned Judge Nina Gershon’s findings below, by unanimously declaring that the Congressional singling-out of ACORN – on a regular annual basis, to bar it and its undefined “affiliates, subsidiaries, or allied organizations” even from consideration for federal funding programs – did not qualify as legislative “punishment” or an Unconstitutional Bill of Attainder. [The panel then “…remand[ed] for further proceedings as to the plaintiffs’ First Amendment and due process claims.”] A judgement with which the Harvard Law Review, for one, laudably disagreed, in this January, 2011 review of the ACORN case and Second Circuit opinion [HLR: “In holding that the denial of funds was not punitive in this case, the Second Circuit relied on Congress‘s implicit conclusion that ACORN had committed the acts of fraud and mismanagement of which it was accused [without formal indictment], a judgment Congress is not entitled to make.45 Extrapolating from past acts, the court also assumed that ACORN’s allegedly fraudulent conduct would continue, and that the instances of mismanagement could be imputed to ACORN’s various affiliates and subsidiaries,46 many of which carried out tasks wholly unrelated to the charges of fraud. […] Had Congress not determined that ACORN was guilty of fraud and misconduct, there would have been no reason to bar the organization from receiving federal funding.55 This species of legislative action is exactly the evil that the Bill of Attainder Clause aims to prevent: congressional pandering to popular whims and the subversion of separation of powers for the sake of political expediency.” (emphasis added)]. Yet, without explanation, on November 23, 2010, the Second Circuit as a whole declined ACORN’s petition for an en banc review of the panel decision.  Subsequently, on February 22, 2011, ACORN, working with the Center for Constitutional Rights, filed a petition for a writ of certiorari of the Second Circuit panel decision with the Supreme Court. But the Supreme Court couldn’t be bothered to address this rare and important Bill of Attainder case, and, on June 20, 2011 (after twice granting the government month-long extensions of time in which to file its response to ACORN’s petition), refused to hear or review ACORN’s case, thus rebuffing ACORN’s plea for justice in the American courts, and dismissing out-of-hand Judge Gershon’s two careful, thoughtful rulings. Like the Supreme Court, Congress didn’t convene, or invite ACORN to, even a single public hearing to allow the ACORN organization to respond to the wild and highly-politicized accusations that Members of Congress were making against it, before depriving ACORN, and ACORN alone (at least until the next animosity-fueled passionate impulse sweeps through Congress and a cowed presidency, this time with advance Judicial Branch blessing), of the opportunity to even be considered for taxpayer-financed federal funding opportunities for which it might like – or have liked – to apply.

Specifically, government counsel from the Obama DOJ, and ACORN and its attorneys from the Center for Constitutional Rights (CCR), head to:

United States Court of Appeals for the Second Circuit [in New York City]
[Ceremonial Courtroom (9th Floor)]

on Thursday, June 24, 2010 (sometime late in the morning) in

ACORN, et al
United States of America, et al

Docket numbers 09-5172-cv and 10-0992-cv


Roger J. Miner, Senior Circuit Judge
José A. Cabranes, Circuit Judge
Richard C. Wesley, Circuit Judge

Background of the case, from Federal Judge Nina Gershon’s final ruling on March 10, 2010:

While there are minor disputes about factual matters, the parties agree that there are no material issues of fact that prevent resolution of this case without a trial.


ACORN’s critics consider it responsible for fraud, tax evasion, and election law violations, and members of Congress have argued that precluding ACORN from federal funding is necessary to protect taxpayer money. ACORN, by contrast, while acknowledging that it has made mistakes, characterizes itself as an organization dedicated to helping the poor and argues that it has been the object of a partisan attack against its mission. This case does not involve resolution of these contrasting views. It concerns only the means Congress may use to effect its goals. Nor does this case depend upon whether Congress has the right to protect the public treasury from fraud, waste, and abuse; it unquestionably does. The question here is only whether Congress has effectuated its goals by legislatively determining ACORN’s guilt and imposing punishment on ACORN in violation of the Constitution’s Bill of Attainder Clause.


Section 163 [of the Continuing Resolution Congress passed last fall to temporarily fund government agencies because of its failure to pass the appropriations bills for FY 2010 before the year began on October 1, 2009] provides that:

None of the funds made available by this joint resolution or any prior Act may be provided to the Association of Community Organizations for Reform Now (ACORN), or any of its affiliates, subsidiaries, or allied organizations.

The Continuing Resolution containing Section 163 went into effect on October 1, 2009, and was extended on October 31, 2009 to December 18, 2009.


Plaintiffs [ACORN] filed suit in this court on November 12, 2009, arguing that Section 163 is an unconstitutional bill of attainder and that it violates their rights under both the First Amendment and the Due Process Clause. In their initial complaint, plaintiffs alleged that, as a direct consequence of Section 163, agencies have refused to review their grant applications; that grants they were told they would receive have been rescinded; that previously-awarded grants have not been renewed; and that HUD had refused to pay on its contractual obligations even for work already performed. Plaintiffs also alleged that other organizations, such as private corporations and foundations, have cut ties to them as a result of Section 163.


Plaintiffs sought emergency relief on November 13, 2009, arguing that Section 163 was an unconstitutional bill of attainder and that it violated their rights under both the First Amendment and the Due Process Clause. On December 11, 2009, I preliminarily enjoined then-defendants the United States, Peter Orszag, in his official role as Director of OMB, Shaun Donovan, in his official role as Secretary of HUD, and Timothy Geithner, in his official role as Secretary of the Treasury, from enforcing the provision, on the grounds that plaintiffs had shown irreparable harm and a likelihood of success on the merits of their claim that Section 163 is a bill of attainder.[Footnote 3] ACORN I, 662 F. Supp. 2d at 299-300.

[Footnote 3:] The government appealed that decision on December 16, 2009, but has not moved in the Second Circuit to expedite the appeal. By letter dated February 12, 2010, the government asked for a due date of May 13, 2010 for its opening brief in the Court of Appeals, which request was “so ordered” on February 17, 2010.

On December 16, 2009, President Obama signed into law the 2010 Consolidated Appropriations Act. Consolidated Appropriations Act, 2010, Pub. L. No. 111-117, 123 Stat. 3034 (2009). This Act, described by the government as a “minibus” Act, is a consolidation of various appropriations acts for Fiscal Year 2010.

Several of the consolidated acts contain provisions prohibiting the award of funding to ACORN.


Following the enactment of the minibus bill, Congress passed and the President signed into law the final outstanding appropriations bill, the Department of Defense Appropriations Act of 2010, which prohibits distribution of funds under the act to ACORN or “its subsidiaries.” Department of Defense Appropriations Act, Pub. L. No. 111-118, Section 8123, 123 Stat. 3409, 3458 (2009). Once this final appropriations act was passed, the Continuing Resolution, and thus Section 163 included in it, expired.

On consent of the government, plaintiffs filed a second amended complaint including all five Fiscal Year 2010 appropriations provisions that prohibit funding to ACORN as well as Section 163. Plaintiffs named three new defendants: Lisa P. Jackson, Administrator of the Environmental Protection Agency (“EPA”); Gary Locke, Secretary of Commerce; and Robert Gates, Secretary of Defense.

Plaintiffs and defendants agree that, for the purposes of the bill of attainder argument, the challenged provisions should be analyzed as one statute. Although several of the full year appropriations acts use language slightly different from that of Section 163, neither plaintiffs nor defendants have suggested that any of these differences is significant, either practically or legally.


Plaintiffs acknowledge that HUD, pursuant to the OLC memorandum [requested by HUD, and issued privately on October 23, 2009 and publicly in late November, 2009] has paid, or has agreed to pay, for work already performed under existing contracts. […]

The defendants recognize that ACORN has been singled out by Congress and that there has been no judicial trial at which ACORN has been found guilty and deserving of punishment, but argue that the challenged legislation is not a bill of attainder because it does not impose punishment. The government relies heavily on Section 535 of Division B of the 2010 Consolidated Appropriations Act, which directs the United States Government Accountability Office (“GAO”) to “conduct a review and audit of the Federal funds received by [ACORN] or any subsidiary or affiliate of ACORN” to determine

(1)whether any Federal funds were misused and, if so, the total amount of Federal funds involved and how such funds were misused; (2) what steps, if any, have been taken to recover any Federal funds that were misused; (3) what steps should be taken to prevent the misuse of any Federal funds; and (4) whether all necessary steps have been taken to prevent the misuse of any Federal funds.

Commerce, Justice, Science, and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-117, Div. B, Section 535, 123 Stat. 3034, 3157-58 (2009). Section 535 directs that within 180 days of enactment of the Act, the Comptroller General “shall submit to Congress a report on the results of the audit…, along with recommendations for Federal agency reforms.” Id. Plaintiffs do not challenge the Section 535 provision as a bill of attainder, but the government relies on the investigation to argue that Congress had a non-punitive reason for passing the challenged provisions.

The mandated GAO review and audit of ACORN

The said GAO review and audit was issued in preliminary form last week:

The Consolidated Appropriations Act, 2010, directed us to issue a report on ACORN within 180 days (by June 14, 2010).3 We also received three request letters from a total of 23 members of Congress asking that we provide information on federal funding provided to ACORN and oversight of the use of this funding.


Given that our analysis related to these objectives is ongoing, the information in this report is preliminary and subject to change. We plan to issue a report later this year with our final results related to ACORN and potentially related organizations.


Scope and Methodology

To identify funding awarded to ACORN or potentially related organizations and its purpose, we asked 31 federal agencies to identify funding (grants, contracts, or cooperative agreements) awarded to ACORN or potentially related organizations from fiscal years 2005 through 2009 and, to the extent possible, any funding that may have gone to ACORN or a potentially related organization as a subaward (subgrant or subcontract) during this period.8 We requested information on federal funding that was awarded to ACORN or potentially related organizations, regardless of whether the funding had been dispersed to or expended by the organizations.


To identify the monitoring processes for funds awarded to ACORN or potentially related organizations, we obtained and compared the agencies’ monitoring protocols with documentation of the steps agencies took to monitor these awards.10 We interviewed and obtained documentation from grant program managers and staff from six of the nine agencies that reported providing funding to organizations on the CRS [Congressional Research Service] list: NeighborWorks, the Election Assistance Commission (EAC), the Corporation for Public Broadcasting (CPB), the Environmental Protection Agency (EPA), the Department of the Treasury (Treasury), and the National Endowment for the Arts (NEA).11 We discussed their monitoring processes and how they decided which mechanisms to apply for particular awards. We also asked grant program managers and staff to identify any problems that agencies found through the oversight process and explain how these were resolved. […]

For our third objective, we reviewed information from DOJ—including the Federal Bureau of Investigation (FBI) and DOJ litigating divisions12—as well as the 31 agencies within the scope of our review and the investigative components of the IGs of those 31 agencies to identify any investigations or prosecutions they have conducted of ACORN or potentially related organizations since fiscal year 2005.


We conducted this performance audit from December 2009 through June 2010 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Results in Brief

Nine agencies—HUD, DHS, DOJ, EAC, NeighborWorks, CPB, EPA, Treasury, and NEA—identified approximately $37.5 million in direct federal grants and at least $2.9 million in subawards (i.e., grants and contracts awarded by federal grantees) to ACORN or potentially related organizations, primarily for housing-related purposes during fiscal years 2005 through 2009. […]

Agencies employed several mechanisms—ranging from reviews of progress reports submitted by grant recipients to on-site monitoring—to oversee the eight direct grants for which we received documentation on their oversight process; agencies generally did not identify any problems with seven of the eight grants.15 Agency officials said that they considered the grant amount and availability of personnel and resources as factors in deciding what type of monitoring to conduct. Agency monitoring efforts identified and resolved a problem with one of eight direct grants to ACORN or potentially related organizations for which we obtained information on oversight. Specifically, NeighborWorks determined that ACORN Housing Corporation had not provided a description of what it planned to accomplish under the grant, as required. After NeighborWorks brought this to the attention of ACORN Housing Corporation officials, these officials subsequently provided the documentation.


In addition to their routine grant oversight, all six of the agencies included in our review that have provided funding directly to ACORN or potentially related organizations since fiscal year 2005 have initiated either IG or internal reviews of these organizations’ use of federal funds in response to congressional requests or at the agency’s own initiative. The DOJ IG completed its review in November 2009 and the CPB, DHS, EAC, and HUD IG reviews, as well as the NeighborWorks review, were ongoing as of May 24, 2010. Table 4 includes the information we obtained from these agencies regarding their reviews.

Distinct from routine grant oversight and monitoring efforts, which are intended to assess whether grantees are meeting the purposes of the grant program and spending funds appropriately, federal agencies may also conduct investigations of an organization or an employee of an organization to determine whether the organization or employee violated federal law. In the closed matters, closed investigations, and prosecutions since fiscal year 2005 provided by the FEC, the FBI, and EOUSA, ACORN and four potentially related organizations (Project Vote, Citizens Consulting, Inc., Citizen Services Inc., and SEIU Local 100) or their employees were involved to varying degrees in the investigated allegations, as detailed in the tables below. The allegations involved generally related to voter registration fraud and election fraud. IGs can also conduct investigations to determine whether an organization or individual violated federal law. However, of the 31 IGs that we contacted, 29 stated that they had no ongoing or closed investigations of ACORN or potentially related organizations since fiscal year 2005.26 Officials from TIGTA stated that they could not comment on whether their office had conducted any investigations of any ACORN or potentially related organizations since 2005 because section 6103 of the Internal Revenue Code prohibits the disclosure of taxpayer information by the Internal Revenue Service, except in specifically enumerated circumstances.27 The HUD IG’s Office of Investigations declined to comment on whether it had any open or closed investigations involving ACORN or potentially related organizations.


The FEC identified four closed matters that involved allegations that ACORN or potentially related organizations violated the Federal Election Campaign Act.28 For each of these matters, the FEC determined that there was no evidence that such violations occurred. These matters are summarized in table 5.


EOUSA identified six closed cases that involved employees of ACORN. The charges filed did not allege wrongdoing by ACORN or any potentially related organizations. The six cases generally involved alleged voter registration fraud; all but one of these cases resulted in a guilty plea by the defendant. These cases are summarized in table 7.


Five of the federal agencies—DOJ, HUD, NEA, Treasury and NeighborWorks—did not provide formal written comments to be included in this report, but instead provided technical comments, which we incorporated as appropriate. In an email received June 8, 2010, the EPA liaison stated that EPA had no comments on the report and on June 9, 2010, CPB and DHS’s liaisons said that their agencies had no comments on the report. In an email received June 9, 2010, EAC’s Director indicated that the draft report accurately reflected the agency’s grants to Project Vote and their management, and had no further comments.


According to ACORN and Project vote officials, the organizations provided information to local election officials that helped initiate prosecutions against their employees who may have been involved in voter registration fraud. We are working to verify this information and will include the results of our efforts in our final report on ACORN to be issued later this year. ACORN and Project Vote officials also stated that they have a comprehensive quality control system in place designed to identify voter registration fraud.

Yup, sounds like a real “federal case” outlined there, all right…

No wonder the House and Senate jumped all over it last year, instead of focusing their collective attention on or meaningfully tackling egregious and ongoing matters like this, which was being publicly reported last November just as the screws were being put to ACORN:

“U.S. taxpayer dollars are feeding a protection racket in Afghanistan that would make Tony Soprano proud,” [Representative John] Tierney said, referring to the fictional mob leader in the TV series “The Sopranos.”

Military authorities in Afghanistan have only been concerned that the supplies reach their destination and the warnings they received from the trucking companies about extortion payments “fell on deaf ears,” said Tierney, who chairs the House Oversight and Government Reform national security subcommittee.

Army Lt. Gen. William Phillips, a senior Pentagon acquisition official, said he was unaware of the allegations that U.S. tax dollars may be indirectly bankrolling the insurgency and promoting instability in Afghanistan.


Members of the subcommittee weren’t impressed. “Warlord Inc.,” a report released Monday by the panel’s Democratic staff, noted that a military task force has been examining allegations since last year of extortion and corruption stemming from the contract. But the report paints the inquiry as slow moving and unfocused.

“There seems to be very little indication the Department of Defense is doing anything,” said Rep. Jeff Flake of Arizona, the subcommittee’s top Republican.


Nearly $700,000 per day is spent on average moving supplies throughout Afghanistan, Phillips said.

– Richard Lardner, Associated Press, June 22, 2010

The GAO report, moreover, is only the latest in a string of independent investigations that have cleared ACORN of wrongdoing since the middle of last year. ACORN itself hired a former Massachusetts Attorney General to do an internal investigation, and the District Attorney for Kings County, New York spent five months looking into ACORN operations after Congressionally-trumpeted doctored hidden-camera videos surfaced last September. The Congressional Research Service also investigated, and was unable to document any wrongdoing on ACORN’s part in a report issued to little notice during the holiday season last December.

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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; 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 »

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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; 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.

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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; 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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"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; 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; 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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"You will not leave this place innocent." Even if you are. Just ask our Senators and Representatives, who preach that UCMJ-violative DOD detention, alone, proves the guilt of detained foreigners

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

In a court declaration this spring, Kuwaiti citizen Fouad Al Rabiah, a 20-year airline employee, father of four, and college graduate from universities in Scotland and the United States, who has been held prisoner since 2002 without formal charge, or review by a Geneva Convention-compliant Article 5 tribunal, as a de facto non-POW war fighter and/or war criminal, in the off-limits-to-visitors American military prison at Guantanamo Bay Naval Base in Cuba, and coercively interrogated throughout his imprisonment, wrote:

…a senior [redacted] interrogator came to me [in Guantanamo, in 2002] and said: “There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”

That March 17, 2009 declaration by Al Rabiah for his habeas corpus court hearing only came into being because, six years after Al Rabiah filed his habeas petition on May 1, 2002, the Supreme Court – in its vital role as part of our third, independent Judicial/Article III Branch of government – in June, 2008 belatedly ordered an end to the severe and unprecedented breach of Constitutional limits by abusive federal military and police authorities, that had been selectively implemented since September, 2001 against foreign Arabs and practicing Muslims at the behest of both the Executive/Article II and Legislative/Article I Branches of our government. As a result, a year after the Supreme Court’s order in Boumediene, a federal district judge this year finally heard and ruled on the merits of Al Rabiah’s 2002 appeal, which asked simply to have the Executive Branch’s reason for its unilateral military imprisonment of Al Rabiah made known to a neutral Judicial Branch magistrate, and accepted or rejected as valid under American law and the law of armed conflict.

Following Al Rabiah’s August, 2009 merits hearing (in anticipation of which his March declaration was filed) – held seven years after it should have been, largely because of the abdication of oversight by Members of Congress of the wars they launch (or, these days, the wars they simply dangerously rubberstamp the launching/expansion of), and because of the many venal authoritarian followers in Congress who politicize and subvert justice for personal gain or personal spite, while refusing to question the far-reaching actions of the largely self-directed Pentagon and CIA – Judge Colleen Kollar-Kotelly ruled in a comprehensive and clearly-explained opinion, on September 17, 2009:

If there exists a basis for Al Rabiah’s indefinite detention, it most certainly has not been presented to this Court. Al Rabiah’s petition for habeas corpus is GRANTED.


The Court shall issue an Order requiring the Government to take all necessary and appropriate steps to facilitate Al Rabiah’s release forthwith.

That’s coming from a judge who knows far more than the average Member of Congress about the highly-classified actions of our government in its pursuit of suspicious foreign agents inside the U.S., Kollar-Kotelly having been the presiding judge of the Foreign Intelligence Surveillance Court for most of the Bush/Cheney reign.

This, on the other hand, is coming from one of the most powerful, plugged-in legislators in the House of Representatives – Dave Obey of Wisconsin, chairman of the House Appropriations Committee, and Ex Officio member of all 12 of its subcommittees, which fund every agency of the Executive Branch, speaking on the House floor Thursday, October 1, 2009:

Now, this country has a problem. After September 11 we picked up a lot of bad and dangerous characters and shipped a lot of them to Guantanamo. We also picked up, on the basis of bad information, some who didn’t belong there. From what I can tell, it would appear like virtually every single person there now deserves to be there.

To anyone actually trying to pay attention to what the Congress of the United States has allowed to transpire in our military prisons – with essentially no oversight from either its Armed Services (chaired by Carl Levin and Ike Skelton) or Foreign Relations (chaired by John Kerry and Howard Berman) Committees – it’s obvious that Dave Obey, among many, many others in our federal legislature, is not even trying to pay attention to the many horrific consequences of the Congressionally-authorized-and-unleashed years-long Executive Branch use of violent armed force abroad.

To his credit, Obey was actually attempting, without sufficient facts in hand, to rebut [link broken, 2/2012; a search of the Appropriations Committee’s two websites – segregated by Party – failed to retrieve the document] unproven and disproven racism-tinged accusations by Harold “Hal” Rogers of Kentucky about our military’s Arab prisoners in Guantanamo Bay. Before I quote some of the wild-eyed, specious claims of Rogers, though, and for the information of Obey and others, including our AWOL media, here’s how things now stand, after the first independent analyses by another branch of government of the Executive Branch’s claims about its military prisoners have finally been undertaken, post-Boumediene, as explained by Harper’s Scott Horton on October 1, 2009:

Seton Hall Law School students and faculty issued a series of impressive reports surveying the available evidence, and they suggested that perhaps as many as 80% of the total inmate population of Gitmo were innocent people, swept up as a result of generous bounty payments the United States offered to Afghan warlords and Pakistani security officials.

Now, as habeas corpus cases are processed, we finally have a basis to judge the Bush-Cheney claims about the Gitmo prisoners. The “judging” is being done by federal judges in Washington, nearly all of them conservative Republicans and quite a few appointed by George W. Bush himself. The results? The process is still ongoing. But at this moment, decisions have been rendered in 38 cases. The government was found to have had a tenable basis to hold eight Gitmo prisoners, and to have no basis in 30 cases. So far at least, the court judgments are remarkable in their coincidence with the numbers from the Seton Hall study. The judicial reviews—which have gotten far less press coverage than the scatter-shot attacks of Dick Cheney and his daughter–can be summarized this way: “Worst of the worst? Not so much.”

Here’s the roll call, with the status, the prisoner involved, the judge who ruled, and the prisoner’s nationality:

Freedom granted—30 (20 of whom are still in custody)

17 Uighurs—Urbina (4 released to Bermuda)

5 Bosnian-Algerians—Leon—(4 released—3 to Bosnia and 1 (Lakhdar Boumediene) to France)

Mohammed el Gharani (Chadian)—Leon (released to Chad)

Yasim Muhammed Basardah—Huvelle (Yemeni)

Alla Ali Bin Ali Ahmed—Kessler (Yemeni)

Abd al Rahim Abdul Rassak Janko—Leon (Syrian)

Khalid Abdullah Mishal Thamer Al Mutairi—Kollar-Kotelly (Kuwaiti)

Mohammed Jawad—Huvelle (Afghan; released to Afghanistan)

Mohammed Al-Adahi– Kessler (Yemeni)

Fouad Al Rabiah—Kollar-Kotelly (Kuwaiti).

Freedom denied—8

Belkacem Bensayah (Bosnian)—Leon

Hisham Sliti (Tunisian)—Leon

Muaz Al Alawi (Yemeni)—Leon

Ghaleb Nassar Al Bihani (Yemeni)—Leon

Hammamy (Tunisian)—Leon

Waqas Mohammed Ali Awad (Yemeni)—Robertson

Fawzi Al Odah (Kuwaiti)—Kollar-Kotelly

Sufyian Barhoumi (Algerian)—Collyer

As for what lead to those decisions, here’s the burden of persuasion, quoting Judge Kollar-Kotelly in her Al Rabiah decision, that the entire resources of the American military and Executive Branch of government could be called on to meet to win those 38, and any future, cases, in order to keep legitimate armed conflict fighters detained (whether or not they committed any recognized offenses against the law of war) for the duration of the conflict:

Pursuant to the Amended Case Management Order that the Court adopted in this case on December 22, 2008, the Government bears the burden of proving by a preponderance of the evidence that Al Rabiah is lawfully detained.


The Government must come forward with evidence demonstrating by a preponderance of the evidence that he is lawfully detained, and if the Government fails to meet this burden, the Court must grant Al Rabiah’s petition for habeas corpus.

That’s all. Not “beyond a reasonable doubt.” Not a jury conviction. Simply by “a preponderance of the evidence,” in the judgement of one judge, that the years-long detention by our military of the prisoner at issue is and was lawful under our Constitution, the 2001 AUMF, and the law of armed conflict. If that low standard can’t be met, with all the odds and classified intelligence in the government’s favor, the detainee wins his case – as 30 of 38 have finally succeeded in doing since June, 2008, thanks to the help of many volunteer civilian defense counsel, and many principled active military JAG officers who are quietly working to resist and undo the unjust abuses perpetrated by their own branch of government.

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The Congress of 1938, in its own words: Defending separated powers in the face of Party pressure to consolidate power

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

The federal legislators quoted herein, excerpted from a bygone Congressional era of genuine floor debate – an era that predates the destructive influence of the corporate-funded television ad election campaign – were broadcasting early warning signals to the nation, about how the increasingly-centralized, consolidated power and control of the modern Political Party, when wielded by the White House over Congress, represents a clear and present danger to our Constitution’s separation of powers.

“Increasingly” centralized, in that not until 1899 (in the House) and the early 1900s (in the Senate) did the position of “Majority/Minority Leader” – Party positions focused solely on a Party agenda – come into existence in our federal legislature. The Democratic Party led the way in both cases, followed shortly thereafter by the Republican Party:

Soon after Democrats took control of the Senate in 1913, they began to suffer from poor attendance at their party caucus meetings. Party leaders had decided to make key decisions on the Democratic administration’s legislative priority “tariff reduction” in [secret] caucus rather than in the [public] Finance Committee. This would allow Democrats to achieve a party position on politically sensitive tariff rates before confronting the Republican minority. Poor caucus attendance by those favoring tariff reduction, however, gave greater weight to Louisiana’s two Democrats who vigorously supported high protective tariffs on imported sugar. Additional defections would have risked letting these senators significantly undermine the party’s commitment to lower tariffs.

Of course, it’s one thing to attempt to enforce obedience to a Party line within Congress itself, using legislative whips and secret balloting, in pursuit of a genuine, well-known, accepted Party platform pledged to the voters during a campaign, to which all Party members essentially subscribe. [Though even this much enforced order obviously compromises the independent action and responsibility of our representatives, and dangerously empowers a select few, absent Party disagreements, in addition to entrenching a Party-created divide in our Congress that should be lessened, not deepened, if democratic debate in the greater public interest, with a minimum of close-minded partisan and parochial factionalism and gamesmanship, is our objective.]

The situation I’m focused on here, however, is that of the insidious modern phenomenom of a President who can successfully (and secretly) demand obedience in a Congress of the same Party, to the President’s preferred policy “agenda” in the name of Party loyalty. That is carrying consolidated Party power too far to preserve representative self-government, as the Bush years so dramatically demonstrated, and it dishonors and eviscerates the Constitutional division of power demanded by the American form of government. We do not have a Parliament, with a Prime Minister. We have an independent Legislative Branch of government. And though our democracy-hostile national media won’t honor or explain the difference, we must, if we mean to retain our liberty and to restore our ability to self-govern, by reforming the decrepit practices of our modern federal legislature.
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