Floor Statements

I rise in opposition to the Woodall amendment.

Madam Chair, we're striking the findings. By striking statements of constitutional authority for the bill, the amendment recognizes that many Members of the House question Congress' constitutional authority to pass H.R. 5. So for that reason, my colleagues, the findings are all important. Supporters of states' rights ought to take the next step and eliminate the section of the bill that preempts State law. Indeed, many supporters of the underlying bill have spent years arguing that decisions about health care are fundamentally prerogatives of the State.

So I have only 18 conservative or Republican scholars and leaders that agree with me, including the Heritage Foundation; the Virginia attorney general, Mr. Cuccinelli; the constitutional law professor at Georgetown Law Center; the distinguished Senator from Oklahoma, Mr. Coburn; some of our colleagues, including Judge Ted Poe of Texas, our colleague from Nebraska, Lee Terry, former judge Louie Gohmert, in particular, Ron Paul; the founder of the Tea Party Nation, Judson Phillips.

It goes on and on, where we are all in agreement that the findings are, indeed, critical and ought to be left in the bill. To take the findings out is incredible because we say that the Federal Government shouldn't be involved, that it's a State matter, and tort law, itself, is a State matter.

So for those reasons, Madam Chair, I am pleased to represent a bipartisan group of Members and scholars that very strenuously object to the findings being removed in this Woodall amendment.

Here's what conservative scholars and leaders have to say

about this hypocrisy:

Heritage Foundation: Despite H.R. 5's reliance on the

Commerce Clause, Congress has no business (and no authority

under the Constitution) telling states what the rules should

be governing medical malpractice claims.

Ken Cuccinelli, Virginia Attorney General: Senate Bill 197

takes an approach that implies ``Washington knows best''

while trampling states'' authority and the 10th Amendment.

The legislation is breathtakingly broad in its assumptions

about federal power, particularly the same 1 power to

regulate commerce that lies at the heart of all the lawsuits

(including Virginia's) against the individual mandate of the

2010 federal health-care law. I have little doubt that the

senators who brought us S. 197 oppose the use of the commerce

clause to compel individuals to buy health insurance. Yet

they have no qualms about dictating to state court judges how

they are to conduct trials in state lawsuits. How does this

sort of constitutional disconnect happen?

And if [S. 197, a medical malpractice bill] it were ever

signed into law--by a Republican or Democratic president--

would file suit against it just as fast as I filed suit when

the federal health-care bill was signed into law in March

2010.

Randy Barnett, Constitution law professor at Georgetown Law

Center and senior fellow at the Cato Institute: This bill

[H.R. 5] alters state medical malpractice rules by, for

example, placing caps on noneconomic damages. But tort law--

the body of rules by which persons seek damages for injuries

to their person and property--have always been regulated by

states, not the federal government. Tort law is at the heart

of what is called the `police power' of states. What

constitutional authority did the supporters of the bill rely

upon to justify interfering with state authority in this way?

Constitutional law professors have long cynically ridiculed

a `fair-weather federalism' that is abandoned whenever it is

inconvenient to someone's policy preferences. If House

Republicans ignore their Pledge to America to assess the

Constitution themselves, and invade the powers `reserved to

the states' as affirmed by the Tenth Amendment, they will

prove my colleagues right.

Senator Tom Coburn (R OK): What I worry about as a fiscal

conservative and also as a constitutionalist, is that the

first time we put our nose under the tent to start telling

Oklahoma or Ohio or Michigan what their tort law will be,

where will it stop? In other words, if we can expand the

commerce clause enough to mandate that you have to buy health

insurance, then I'm sure nobody would object to saying we can

extend it enough to say what your tort law is going to be.

Then we are going to have the federal government telling us

what our tort laws are going to be in healthcare, and what

about our tort laws in everything else? Where does it stop?

One of the things our founders believed was that our 13

separate states could actually have some unique identity

under this constitution and maybe do things differently, and

I think we ought to allow that process to continue as long as

we are protecting human and civil rights.

Congressman Lee Terry (R NE): If you're a true believer in

the 10th Amendment, then why are we not allowing the states

to continue to create their own laws and decide what's in

their best interest for their residents?

Congressman Ted Poe (R TX): The question is: does the

federal government have the authority under the Commerce

Clause to override state law on liability caps? I believe

that each individual state should allow the people of that

state to decide--not the federal government. . . . If the

people of a particular state don't want liability caps,

that's their prerogative under the 10th Amendment. . . . but

I have concerns with the current bill as written.

Congressman Louie Gohmert (R TX): The right of the states

for self-determination is enshrined in the 10th Amendment . .

. I am reticent to support Congress imposing its

will on the states by dictating new state law in their own

state courts.

Congressman Ron Paul (R TX): The federal government

shouldn't be involved. It's a state matter; tort law is a

state matter.

Congressman John Duncan (R TN): I have faith in the

people--I have faith in the jury system. It's one of the most

important elements of our freedom, and it was so recognized

in the Constitution, was felt to be so important, it was

specifically put into the Constitution in the Seventh

Amendment. And I'll tell you, it's a very dangerous thing to

take away rights like that from the people.

Senator Mike Lee (R UT) on tort reform: Congress needs to

be very careful when it enters into a uniquely state law area

like tort. So tort reform needs to be undertaken very

carefully insofar as it done at the federal leve1.

Judson Phillips, founder of Tea Party Nation: Some

conservatives complain opposing unconstitutional tort reform

rewards the trial lawyers. The trial lawyers may benefit from

stopping unconstitutional tort reform, but we fight to

protect the Constitution. In this case, the trial lawyers are

with us supporting the 10th Amendment.

Robert Natelson, senior fellow at the Independence

Institute: To be blunt: H.R. 5 flagrantly contravenes the

limitations the Constitution places upon Congress, and

therefore violates both the Ninth and Tenth Amendments. . . .

During the debate over ratification of the Constitution,

leading Founders specifically represented that the subject-

matter of H.R. 5 was outside federal enumerated powers and

reserved to the states.

John Baker, Catholic University law professor: House

Republicans hope to nationalize medical malpractice law,

which is traditionally a matter of state tort law, by passing

H.R. 5, a bill that would wipe out all state medical

malpractice laws and complete the nationalization of

healthcare. Passage of H.R. 5 would undercut arguments that

Obamacare is unconstitutional.

Carrie Severino, chief counsel and policy director at the

Judicial Crisis Network: Among other things, S. 197 sets a

statute of limitations for claims, caps damages and creates

standards for expert witnesses . . . but they are not within

the constitutional powers granted to the federal government

for the very same reasons Obamacare is not.

The law's own justification for its constitutional

authority should be chilling to anyone committed to limited

federal power. The bill's findings state that health care and

health insurance are industries that `affect interstate

commerce,' and conclude that Congress therefore has Commerce

Clause power to regulate them--even when it involves an in-

state transaction between a doctor and patient, governed by

in-state medical malpractice laws.

I yield back the balance of my time.

Would the gentleman yield?

I thank the gentleman for his courtesy. But why, as a new Member--and we welcome you to this body--why would we strike all the findings from H.R. 5?

Madam Chair, I demand a recorded vote.

Just to get the facts into this debate, I rise in strong support of the Bonamici amendment. I include for the Record the Congressional Budget Office letter to Chairman Dreier on March 19 in which the CBO estimates that enacting the provision will increase the deficits, if you use IPAB, by $3.1 billion.

Congressional Budget Office,

U.S. Congress,

Washington, DC, March 19, 2012.

Hon. David Dreier,

Chairman, Committee on the Rules, House of Representatives,

Washington, DC.

Dear Mr. Chairman: The Congressional Budget Office has

reviewed H.R. 5, the Help Efficient, Accessible, Low-cost,

Timely Healthcare (HEALTH) Act of 2011, as posted on the Web

site of the House Committee on Rules on March 12, 2012. CBO

estimates that enacting the bill would reduce direct spending

and increase revenues; therefore, pay-as-you-go procedures

apply. Together, the changes to direct spending and revenues

would reduce future deficits by $13.7 billion over the 2013

2017 period and by $45.5 billion over the 2013 2022 period.

Federal spending for active workers participating in the

Federal Employees Health Benefits program is included in the

appropriations for federal agencies, and is therefore

discretionary. H.R. 5 would also affect discretionary

spending for health care services paid by the Departments of

Defense and Veterans Affairs. CBO estimates that implementing

H.R. 5 would reduce discretionary spending by $1.1 billion,

assuming appropriations actions consistent with the

legislation.

H.R. 5 would impose limits on medical malpractice

litigation in state and federal courts by capping awards and

attorney fees, modifying the statute of limitations, and

eliminating joint and several liability. It also would repeal

the provisions of the Affordable Care Act (ACA) that

established the Independent Payment Advisory Board (IPAB) and

created a process by which that Board (or the Secretary of

the Department of Health and Human Services) would be

required under certain circumstances to modify the Medicare

program to achieve certain specified savings.

CBO estimates that the changes in direct spending and

revenues resulting from enactment of the limitations on

medical malpractice litigation would reduce deficits by $48.6

billion over the 2013 2022 period. CBO also estimates that

implementing those provisions would reduce discretionary

spending by $1.1 billion, assuming appropriations actions

consistent with the legislation. The basis for that estimate

is described in the cost estimate CBO transmitted on March

10, 2011, for the HEALTH Act as ordered reported by the House

Committee on the Judiciary on February 16, 2011. The

estimated budgetary effects have been updated to assume

enactment near the end of fiscal year 2012 and to reflect

CBO's current budgetary and economic projections.

CBO estimates that enacting the provision that would repeal

the Independent Payment Advisory Board would increase

deficits by $3.1 billion over the 2013 2022 period. The basis

for that estimate is described in the cost estimates CBO

transmitted on March 7 and March 8, 2012, for H.R. 452 as

ordered reported by the House Committee on Energy and

Commerce and by the House Committee on Ways and Means,

respectively.

H.R. 5 contains an intergovernmental mandate as defined in

the Unfunded Mandates Reform Act (UMRA) because it would

preempt state laws that provide less protection for health

care providers and organizations from liability, loss, or

damages (other than caps on awards for damages). CBO

estimates the cost of complying with the mandate would be

small and would fall well below the threshold established in

UMRA for intergovernmental mandates ($73 million in 2012,

adjusted annually for inflation).

H.R. 5 contains several mandates on the private sector,

including caps on damages and on attorney fees, the statute

of limitations, and the fair share rule. The cost of those

mandates would exceed the threshold established in UMRA for

private-sector mandates ($146 million in 2012, adjusted

annually for inflation) in four of the first five years in

which the mandates were effective.

Madam Chairman, I rise in opposition to this amendment.

To my colleague, Mr. Dent, hold up. You're giving complete immunity to hospitals, physicians, and providers for any emergency activity. Do you want to do away with all liability whatsoever because it's in an emergency room? Of course, you don't. But this amendment requires the Federal Government to pay for the medical errors committed and denies our government any ability to address or reprimand those who commit medical errors. You don't want to do that. You don't want to go that far.

The Federal Government would be responsible for all occurrences of negligence in an emergency room. Please. Ninety-eight thousand patients die every year due to preventable medical errors.

I reserve the balance of my time.

Announcement by the Acting Chair

But what we're doing in the amendment is to provide immunity to all hospitals and physicians and require the Federal Government to pay for medical errors committed by them.

Look, we have 98,000 patients dying every year due to preventable medical errors. I'm not slamming the docs and the hospitals. I'm saying that we don't want to provide complete immunity.

This Dent amendment, Madam Chairman, does just that: it provides complete immunity.

So I'm asking my colleagues to please slow down and realize that irreparable harm due to negligence in the emergency room--and we've got pages

and pages of examples--would be not subject to adjudication because of this amendment. It's a very dangerous amendment. It goes way too far. It's overbroad. And I urge my colleagues to carefully examine the consequences of this provision.

I reserve the balance of my time.

Madam Chairman, this amendment would actually lower the incentive to practice safe medicine, and I say this on careful examination.

I'm surprised that my colleague, the leader on the other side, himself a distinguished doctor, would be silent on this provision because it shields hospitals, employed physicians, even physicians who are already covered by private insurance; and physicians working in an emergency room setting will never be held accountable when they wrongfully injure their patient. That is my only reservation and objection to what is otherwise an honorably intended revision of this measure.

When hospitals and emergency room departments are not held accountable for medical errors and for negligence, then they have no incentive to offer quality care or hire competent physicians. Please, I beg you to carefully examine the dangers implicit in the Dent-Sessions amendment.

I yield back the balance of my time.

Madam Chairman, I rise in strong opposition to this amendment.

It is my position that within the good that this does is a poison pill. The good is that consumers would also benefit from a repeal of McCarran-Ferguson. We salute you. But the poison pill is that this measure would ban class actions on a claim for violation of antitrust law, which is the cleverest way of ending antitrust law. Unless you have a class action--well, my doctor-Congressman is not a lawyer, but without class actions, you can't bring a claim because nobody's going to file a suit on a $30 issue, 1 million people suing for $30 each. So it's a poison pill.

I'd like to yield such time as he may consume to the gentleman from Oregon (Mr. DeFazio), who had an amendment that had huge bipartisan support.

Madam Chairman, I yield myself the balance of my time.

We are here debating an overwhelming proposition offered by the gentleman from Oregon (Mr. DeFazio), which would have corrected this problem so beautifully. But now comes the poison pill, which says no more class actions. If you can't bring class actions in this matter, then there's no way people with small, valid claims can go into court and sue for 30 bucks.

Now, I think most people understand this without going to law school. If you eliminate class actions, you have effectively destroyed the McCarran-Ferguson repeal that we are bragging about. So it's a kind of undercover scheme. We pretend we're doing something good. We ignore DeFazio's overwhelmingly bipartisan supported provision, and we let the insurance company through, and they live to continue the vile practices that have been revealed and discussed in this debate.

I yield back the balance of my time.

I rise in opposition to the Stearns amendment.

Madam Chairman, the problem here is we don't have a problem. The 1997 law, which is called the Volunteer Protection Act, which I don't recall being mentioned, already provides immunity to all volunteers, not just doctors, to everybody, all volunteers, and has worked very effectively to ensure that nonprofit or government entities remain responsible for background checks.

I remind my colleagues of the Tenth Amendment to the Constitution, which is violated in H.R. 5, which preserves our system of federalism that allows States to legislate their own State tort laws and the qualifications of health care professions. What could be more simple than that?

This is one of the least debated provisions of our great Constitution. And so amendments that limit liability of health care professionals by our Congress and provide a virtual blanket immunity to any individual for any harm while acting in a volunteer capacity during a disaster violates the Tenth Amendment to the Constitution.

Madam Chairman, I reserve the balance of my time.

Madam Chair, I raise a question to my good friend from Florida.

If you feel strongly about this, why don't we modify the Volunteer Protection Act of 1997 rather than go into the business of a constitutional violation by changing all of the State laws with this wholesale limitation of liability? Why not do it in a more appropriate way, which we would be bound to consider with you?

I yield to the gentleman if he cares to make a comment on that.

The Volunteer Protection Act, I say to my colleague from Florida, is a Federal bill enacted in 1997, and that's the one that I would urge you to want to join with me and others to modify if there is a problem.

What you're doing by Stearns-Matheson is that you are now changing the law in all 50 States without going through the Volunteer Protection Act over which we have jurisdiction. That's the reason that I urge my colleagues that there is no need to upend existing State laws to provide unnecessary immunity.

I reserve the balance of my time.

Madam Chair, that's what we're doing under the Volunteer Protection Act is protecting our volunteers, our good citizens that come forward.

Please, I would like to focus on the amendment here that provides a lesser degree of liability protection while allowing weaker State standards to remain in place.

What we need to do is to preserve our system of federalism and support the Volunteer Protection Act which is constitutional, which does not violate the prerogative of the States to manage and legislate on their own tort laws and determine the qualifications of health care professionals.

Mr. Speaker, I demand a recorded vote.

Madam Chair, I yield myself such time as I may consume.

Ladies and gentlemen of the House, when we passed the landmark Affordable Care Act, some derisively termed it ``ObamaCare.'' I believe that some day this bill will be famous because it is named after the President.

We were proud to have taken up an important step in realizing a goal that we've been striving for for quite a long time. But today, we're confronted with a leader in the House, himself a medical doctor, who is urging that we take a step backward and roll back our progress.

The measure before us will repeal the Independent Payment Advisory Board, which would save us millions of dollars and pay for itself by pushing through malpractice legislation that undermines State sovereignty and enriches corporations that surely don't need it.

Congress established the advisory board to slow Medicare's growth costs. The Independent Payment Advisory Board does not undermine our role in Medicare policy nor does it cut access to care. Its repeal, however, removes critical oversight and efficiency and paves the way for the majority's plans to replace guaranteed health care for seniors with corporate voucher systems.

How many of us have constituencies that you could go back home and tell your constituents that you're going to replace this health care bill that is praised from one end of the country to the other, that has taken decades to enact, that we're now going to use vouchers for health care?

When we passed President Obama's landmark Affordable Care Act, we were proud to have taken an important step in realizing that ideal.

But today, the Majority takes a step backwards. They seek to roll back our progress. H.R. 5, the so-called ``Help Efficient, Accessible, Low-cost, Timely Healthcare Act,'' will repeal the Independent Payment Advisory Board, IPAB, which saves us millions, and pay for it by pushing through malpractice legislation that undermines State sovereignty and enriches insurance companies.

Congress established the IPAB to slow Medicare's growth costs. The IPAB does not undermine our role in Medicare policy or cut access to care. Its repeal, however, removes critical oversight and efficiency, and paves the way for the Majority's plans to replace guaranteed healthcare for seniors with corporate voucher systems.

Rolling back these cost-cutting measures will cost the Federal Government money, and so to pay for this costly repeal, the Majority has offered up the same tired old medical malpractice proposals they have been pushing for the last two decades. In fact, this is the fourteenth time that the full House will have considered this measure since 1995. It wasn't a good idea 20 years ago, and it isn't a good idea today.

Rather than helping doctors and victims, the bill before us represents a windfall for the health care business. It pads the pockets of insurance companies, HMOs, and the manufacturers and distributors of defective medical products and pharmaceuticals. And it does so at the expense of innocent victims--particularly women, children, the elderly, and the poor.

The malpractice liability provisions before us today would supersede the law in all 50 states to cap non-economic damages, cap and limit punitive damages, limit access to the courts for poorer victims of medical malpractice, shorten the statute of limitations for claims, eliminate protections for children, and eliminate joint and several liability.

We need to cut the charades and get to the heart of the problem.

The malpractice insurance industry is plagued by collusion, price fixing, and other anticompetitive activities. Yet this bill does nothing to respond to this problem.

It is also clear that a legislative solution largely focused on limiting victims rights available under our state tort system will do little other than increase the incidence of medical malpractice-- already the sixth leading cause of preventable death in our nation.

Under the proposed caps on damages, Congress would be saying to the American people that we don't care if you lose your ability to bear children, we don't care if you are forced to bear excruciating pain for the remainder of your life, we don't care if you are permanently disfigured or crippled.

The proposed new statute of limitations takes absolutely no account of the fact that many injuries caused by malpractice or faulty drugs take years or even decades to manifest themselves and trace the root cause.

The bill would allow insurance companies teetering on the verge of bankruptcy to delay and then completely avoid future financial obligations. And they would have no obligation to pay interest on amounts they owe their victims.

And guess who else gets a sweetheart deal under this legislation? Drug companies--most of which are foreign. This bill makes drug and device manufacturers immune from punitive damages, so long as the FDA has approved their products or their products are generally considered ``safe,'' no matter how egregious their behavior.

The bottom line is that this legislation doesn't prevent terrible things from happening in hospitals. The bill's takeover of state courts won't help judges throw out frivolous lawsuits, and a ceiling of a quarter of a million dollars won't stop bad actors from looking for a payout.

Instead, this legislation lifts legal and financial risk from hospitals, drug manufacturers, and insurance companies, and drops that burden onto real people, the victims of medical malpractice.

This bill helps the powerful at the expense of the injured, the elderly, and the very young. It raises serious federalism concerns and overturns the law in all 50 states. And it huts real people with real injuries, blocks them from the courts and limits their rights to legal redress, all in the name of a dangerous, unnecessary, and unfair theory about malpractice liability.

I urge my colleagues to reject this anti-patient, anti-victim legislation.

Madam Chair, I reserve the balance of my time.

Madam Chair, I am pleased now to yield 1 minute to the former Speaker of the House of Representatives, our leader, the gentlewoman from California, Nancy Pelosi.

Mr. Chairman, I am pleased to yield such time as he may consume to a member of the House Judiciary Committee, Jerrold Nadler, who has worked on this subject matter for quite a long time.

Mr. Chairman, I ask if the distinguished gentleman from Illinois (Mr. Johnson) would like additional time. If he requires any, I would be glad to arrange to yield him further time.

If you require more time, I would be delighted to yield it to you.

I thank you, Mr. Johnson.

Mr. Chairman, I am pleased now to yield 4 minutes to the Judiciary Committee member from Florida (Mr. Deutch), who has worked very carefully with us on this subject matter.

Mr. Chairman, I am pleased now to yield as much time as he may consume to the distinguished gentleman from Georgia (Mr. Johnson), a member of the House Judiciary Committee.

Mr. Chairman, I yield myself 1 minute to ask my friend and distinguished medical practicer and Member of Congress, Mr. Gingrey, is he aware that his bill, H.R. 5, eliminates joint and several liability for both economic and noneconomic damages?

I yield to the gentleman for that purpose.

I yield myself an additional minute, and I thank Dr. Gingrey for his response.

I ask the author of this bill, H.R. 5, if the answer to my question of whether H.R. 5 eliminates joint and several liability for both economic and noneconomic damages is ``yes''?

I thank the gentleman very much.

Mr. Chairman, I am now pleased to yield as much time as she may consume to the gentlewoman from Houston, Texas, Ms. Sheila Jackson Lee.

Mr. Chair, I yield the gentlelady 1 additional minute.

I yield the gentlelady 1 additional minute.

I yield such time as she may consume to a senior member of the Judiciary Committee, Maxine Waters of California.

Mr. Chairman, we have no further requests for time. With the agreement of the chairman of the committee, I would like to close at this point.

I'd like to thank all of the Members on both sides of the aisle that have participated in this important debate. There has been a lot of clarity, even though there has been a great difference in opinion.

I return the balance of my time with this thought in mind, that even though the author of this bill is a well-regarded medical practitioner and a distinguished Member of the body, he is a doctor, but he is not a lawyer.

I commend him on the fact that he agreed with the statement that to me determines a lot of people's point of view about this very controversial bill that is now before the floor, H.R. 5. That is, he agreed and answered in the affirmative that H.R. 5 eliminates joint and several liability for economic, noneconomic, and punitive damages. To me, with all the cases that have been of human suffering, of injury to women and children, of how wrong it would be to limit all of these kinds of damages to $250,000 in this 21st century is an insult to common sense and fair play.

I will yield to the gentleman.

Well, through the Chairman, I accept the comments of the gentleman from Georgia. I assume that his response to my question earlier is still ``yes.'' If that is the case, then all I can say is that I think there are very few people in the Federal legislature or among our citizenry who would say that there should not be an unlimited amount of recovery. The gentleman must have some feeling for the fact that $250,000 for the rest of the person's life, if they lose arms or legs, eyes, it's just unacceptable. I won't say that it's immoral, but it's unfair.

It's my hope that most of our colleagues, as we continue this debate tomorrow, will realize that that is the fatal flaw in a bill that may have some justification in other parts of it, but that limitation of damages cannot be rationalized nor justified by the collective body of this legislature. For that reason, sir, I am urging all of our colleagues to consider this one point that I make tonight, as I close, as to be controlling in their decision that they will make as we vote tomorrow on this bill.

I thank all of the Members that have joined in this debate this evening.

Mr. Chairman, I yield back the balance of my time.

Mr. Speaker, I rise today in memory of Rev. George St. Angelo, a resident of the state of Illinois, who dedicated his life to being a civil rights and social justice advocate.

In 1955, St. Angelo was the first chaplain at North Central College where he encouraged discussion of social justice issues by inviting a variety of important speakers to the college's campus. These speakers included ``Freedom Ride'' organizer and Committee on Racial Equality founder James Farmer, Morehouse College President Benjamin Mays, and St. Angelo's good friend Rev. Martin Luther King, Jr. Despite local opposition, two weeks after the first historic voting rights march that ended in the ``Bloody Sunday'' beating of citizens in Alabama, St. Angelo took a group of students from the suburban Chicago college to participate in the third Selma to Montgomery voting rights march, which ended at the state capitol with Dr. King's ``How Long, Not Long'' speech.

I have profound respect for St. Angelo's devotion to the civil rights movement. He dedicated his life to service and remained personally involved in promoting intercultural understanding until his death.

Thank you, Rev. George St. Angelo, for remaining steadfast in the fight for voter equality in this country. The people of Michigan, and all of those who you helped and fought for, will always remember your kindness, courage, and dedication to this just cause.

Madam Speaker, I strongly support H.R. 4086, the ``Foreign Cultural Exchange Jurisdictional Immunity Clarification Act,'' as amended. This is a bipartisan bill that the Judiciary Committee ordered favorably reported by voice vote.

This bill contains a narrowly tailored fix to the expropriation exception of the Foreign Sovereign Immunities Act of 1976 that would clarify that the exception is not available in cases where:

artwork or a cultural object is imported into the United States for temporary exhibit or display pursuant to an agreement between a foreign state that owns or has custody of the work and a U.S. cultural or educational institution;

the work has been granted immunity from seizure by the President pursuant to the Immunity from Seizure Act because it is of cultural significance and its temporary exhibit or display is in the national interest; and

the President's determination has been published pursuant to IFSA.

The bill also clarifies that its provisions do not apply to Nazi-era claims regarding the ownership of art or cultural objects.

In short, this bill immunizes foreign states from lawsuits that seek damages for artwork that is already immune from seizure pursuant to a Presidential determination when the work is in the U.S. for temporary exhibition.

I am an original cosponsor of this bill for several reasons.

First, H.R. 4086 will make the FSIA consistent with the purpose underlying the Immunity from Seizure Act.

The IFSA was intended to encourage foreign states to lend their artwork and other cultural property to American museums and educational institutions for the cultural and educational benefit of the American people.

We enacted the IFSA in 1965 at the height of the Cold War to immunize certain artwork owned by the Soviet Union so that the Soviets would lend the artwork to the University of Richmond for a temporary exhibit.

We recognized then, and continue to recognize now, that as a general matter, the benefits of the cultural exchange fostered by temporary exhibits or displays of artwork outweigh the provision of a U.S. forum for disputes about the ownership of cultural property that is held by a foreign government.

The benefits of cultural exchange include an increased understanding of and appreciation for foreign cultures, a decrease in xenophobia and prejudice, and perhaps even some diplomatic benefit in fostering mutual respect between our Nation and other nations.

IFSA worked well for 40 years. Unfortunately, the court's decision in Malewicz [MA-le-vich] v. City of Amsterdam broadened the scope of the FSIA's expropriation exception to the point where it undermined IFSA.

The court construed the term ``commercial activity'' as used in the FSIA to include the temporary exhibit of artwork in the United States. This triggered the expropriation exception to sovereign immunity even though the works at issue in Malewicz had been immunized from seizure by the President.

The Malewicz case has had a chilling effect on loans of cultural property from foreign states.

According to a letter urging my support for this bill that I received from Graham W.J. Beal, Director of the Detroit Institute of Arts, both the Russian and Czech governments are refusing to lend works of art to American museums in the wake of this court decision.

Additionally, the Metropolitan Museum of Art withdrew a loan request to a Middle Eastern museum out of fear that once the works were in the U.S., their presence would be used as grounds for a lawsuit.

H.R. 4086 resolves the inconsistency between the IFSA and the FSIA created by the Malewicz decision by ensuring that any work that the President has immunized from seizure pursuant to IFSA will also immunize the foreign government owner of that work from a suit for damages under FSIA.

Second, the sovereign immunity provided for under this bill is limited to a very specific set of circumstances.

H.R. 4086 does not cover every possible claim concerning the ownership of artwork owned by a foreign government. For instance, the expropriation exception could be available for any claim concerning works that have not received immunity from seizure under IFSA.

Similarly, the expropriation exception remains available for a work that is not in the United States on temporary exhibit or display pursuant to an agreement.

Additionally, H.R. 4086 leaves untouched the other exceptions to sovereign immunity provided for in the FSIA, including the general ``commercial activity'' exception.

Third, I can support H.R. 4086 because it makes an exception for Nazi-era claims.

This carve-out is consistent with longstanding American policy to seek restitution when possible for victims of the Nazi government, its allied governments, and its affiliated governments.

In light of the unique historical sensitivities surrounding the Nazi government's deliberate campaign to steal artwork from its victims, H.R. 4086 rightfully ensures that victims of the Nazis are not foreclosed from pursuing damages for stolen art, even at the cost of foreclosing cultural exchange.

H.R. 4086 is an exceedingly modest bill that will nonetheless foster tremendous benefits for the American people.

I applaud Representative Steve Chabot, the sponsor of this bill, as well as my fellow co-sponsors, Judiciary Chairman Lamar Smith and Representative Steve Cohen, for their leadership on this issue.

I urge my colleagues to support this bill.

I thank the gentleman for yielding.

I'm glad that we can make this change of bringing together these deserving countries. I hope the bipartisan efforts coming from the Committee on the Judiciary, from both Chairman Smith and from senior member Howard Berman, will be a foundation on which to consider additional immigration reforms, reforms that are desperately needed to help families and businesses across this country.

I rise today in support of H.R. 3992, a bipartisan proposal that would make Israel eligible to participate in the E 2 ``Treaty Investor'' visa program, which is now available to 79 other countries.

Although larger reform of our immigration laws has remained elusive, there are small places where we can work across the aisle to pass commonsense legislation and achieve incremental, but important, results.

H.R. 3992--introduced by my friend, Representative Howard Berman, along with Judiciary Chairman Lamar Smith, Foreign Affairs Chairwoman Ileana Ros-Lehtinen, and Immigration Subcommittee Ranking Member Zoe Lofgren--is just such a bill.

This bipartisan bill allows citizens of Israel to come to the United States on E 2 visas for ``treaty investors'' if those individuals make substantial investments in businesses in the United States. And, those visas would only be available if Israel provides similar visas to U.S. citizens seeking to invest in businesses in Israel.

As I just mentioned, the E 2 visa program is currently available to citizens of 79 other countries. This list includes our closest allies and trading partners, including the United Kingdom, Canada, Mexico, Japan, Jordan, and South Korea. And it also includes countries that are perhaps less obvious, such as Pakistan, Honduras, Liberia, and Iran.

With a population of less than 8 million people, Israel is the United States' 22nd largest export market. Yet Israel is not currently eligible for E 2 visas. By expanding eligibility to Israeli citizens, and by Israel's expansion of similar visas to U.S. investors, we should see an increase in trade and investment beneficial to both nations.

I am glad that we can make this change for Israel and I look forward to working with Howard Berman and Chairman Smith to afford this same opportunity to perhaps additional, deserving countries.

I also hope today's bipartisan efforts will provide a foundation to consider additional immigration reforms--reforms that are desperately needed to help businesses and families in my district in Michigan and across the country.

I thank Mr. Berman for introducing this bill. And I thank Chairman Smith and Chairwoman Ileana Ros-Lehtinen of the Foreign Affairs Committee for their support of this important piece of legislation.

I urge my colleagues to support this legislation.

Mr. Speaker, even though he is very much alive, I rise this evening to celebrate the inspired life and contributions of the Reverend Dr. Charles Adams, who, on April 30 of this year, will be completing his teaching at the Harvard Divinity School, where he has for years conducted these important courses that he has taught.

Earlier, he was the head of the largest NAACP chapter in the Nation, the Detroit chapter. He has inspired countless numbers of people on this planet to a greater faith and in the necessity to follow up with the work to produce the change, the compassion that in some ways, sometimes large and other times small, can dispense hope in a community, a State, a Nation, and sometimes even a world.

Dr. Charles Gilchrist Adams

Pastor, Hartford Memorial Baptist Church

William and Lucille Nickerson Professor of the Practice of Ethics and

Ministry, Harvard Divinity School

Charles G. Adams, one of the most prominent ministers in

the United States, an acclaimed preacher and leader on faith-

based urban revitalization has been Pastor of Hartford

Memorial Baptist Church since 1969. From 1962 to 1969 Dr.

Adams served as Pastor of the historic Concord Baptist Church

in Boston, Massachusetts. He has lectured on homiletics and

Black Church Studies at Boston University, Andover Newton

School of Theology, Central Baptist Seminary in Kansas City,

and Iliff School of Theology in Denver, Colorado.

Charles Gilchrist Adams, was born December 13, 1936, in

Detroit, Michigan. He was baptized by his granduncle, the

late Gordon Blaine Hancock, of Richmond, Virginia. He

attended Fisk University where he was President of the

Sophomore Class and Vice President of the Student Council.

He graduated with honors from the University of Michigan

and Harvard University and went on to become a doctoral

fellow in Union Theological Seminary in New York City. He has

been awarded twelve honorary doctorates from such

institutions as Morehouse College, Marygrove College, Dillard

University, Morris College, Kalamazoo College in Kalamazoo

Michigan, and the University of Michigan.

From 1962 to 1969, Dr. Adams served as Pastor of the

historic Concord Baptist Church in Boston, Massachusetts,

followed by an appointment as the Pastor of Hartford Memorial

Baptist Church in Detroit, Michigan, in 1969. He has lectured

on homiletics and Black Church studies in Boston University,

Andover Newton School of Theology, Central Baptist Seminary

in Kansas City, and Iliff School of Theology in Denver,

Colorado. He lectured seven times at Boston University School

of Theology in a course on the Black Church taught by

Professor Preston Noah Williams.

In April 1989, Dr. Adams was invited to speak before the

United Nations on South African apartheid. In August 1990, he

was a speaker for the World Congress of the Baptist World

Alliance in Seoul, Korea. His theme was ``Together In Christ

We Love.''

In 1991, Dr. Adams addressed the Seventh General Assembly

of the World Council of Churches in Canberra, Australia, and

spoke on the 157 theme, ``Come Holy Spirit, Renew The Whole

Creation. At this Assembly, he was elected to their

organization's Central Committee. He recommended the World

Council use its offices and resources to combat racism in the

U.S. and around the world, and their response was to join

forces with the National Council of the Churches of Christ in

the USA. Together, the organizations converged on Los Angeles

in 1992 to meet with churches, gang leaders, public officials

and citizens in order to bring about a lasting peace after

the riots following the verdict in the beating of Rodney

King.

Dr. Adams was the 1993 94 Conference Preacher for Hampton

University Ministers Conference held in Hampton, Virginia. He

has been awarded twelve honorary doctorates from colleges and

universities across the country, has spoken before the United

Nations (on South African Apartheid), and has received the

coveted ``Rabbi Marvin Katzenstein Award'' from the Harvard

Divinity School. This is given to a Harvard graduate who

exhibits ``a passionate and helpful interest in the lives of

other people, an informed and realistic faithfulness, and an

embodiment of the idea that love is not so much a way of

feeling as way of acting and has a reliable sense of humor.''

Dr. Adams' board affiliations include the Baptist World

Alliance, the World Council of Churches, the National Council

of Churches, the Congress of National Black Churches,

Morehouse College (Atlanta, GA) and Morris College (Sumpter,

SC). He is married to Agnes Hadley Adams and is the father of

Tara Adams Washington, M.D., and the Rev. Charles Christian

Adams.

I thank the gentleman for yielding to me. I also thank Donna Christensen for her leadership in bringing us all together this evening.

This is a wonderful way, when this Record is read of this Special Order for Donald Payne, for everyone to know the depth of the love and respect that we all had for this great and gentle human being.

He was a committed public servant and a true champion for social and economic justice at home and around the world. He had a global perspective that helped teach us that all of the 6.4 billion people on Earth are connected and related. So when I was asked to campaign for his first run for Congress that I knew about, which was in 1988, I was pleased to do so. I traveled to Newark and joined with him in that victory. I remember being struck by his deep desire to help people, and I had no idea that he would grow and develop into this leader whom we mourn and praise here today.

Through his work as a member of the House Education and the Workforce Committee and of the Foreign Affairs Committee, he led the fight to address inequities in every realm of existence. He was a great proponent for peace. I must say that I am convinced that he had the spirit and the philosophy of Dr. Martin Luther King, Jr., that he lived and demonstrated every single day of his life. He is the one Member of whom I can say I never saw angry, I never saw upset. When I was able to take him away from his African commitments, I took him to Haiti, where he immediately understood the depth of the suffering and the tragedy that required us to go back again and again and again.

So, Donald Payne, what has been said of you today is only a small token of the contributions that you have made during your life. You will be missed by your colleagues. You will be mourned by your family. You will be treasured by many people in many places on this globe.

Mr. Speaker, I rise today to pay tribute to my friend, my brother, the one and only Harry Belafonte, whose birthday is today, his fame as a singer popularizing the Caribbean musical style with an international audience, and is best known for singing the Banana Boat Song, with its signature lyric, ``Day-O.'' He's a movie star and was in pictures filmed with Dorothy Dandridge and then Carmen Jones, which was Otto Preminger's hit musical.

Throughout his career, though, he has been a civil rights advocate and a leader in humanitarian causes; and, for me, his close counsel and advice and support to the late Dr. Reverend Martin Luther King, Jr., is something that I think will go down in civil rights history.

He's been a leader in humanitarian causes for many years. He helped organize the Grammy award winning song, ``We Are the World,'' a multi- artist effort to raise funds for Africa when they needed it most. He performed in the Live Aid concert that same year.

In 1987, Mr. Belafonte received appointment to UNICEF as a goodwill ambassador; and following his appointment, he traveled to Dakar, Senegal, where he served as chairman of the International Symposium of Artists and Intellectuals for African Children. He also helped to raise funds with dozens of other artists in the largest concert ever held in sub-Saharan Africa. And then he went on a mission to Rwanda and launched a media campaign to raise awareness of the needs and the troubles and the nutritional challenges of Rwandan children.

In 2001, he went to South Africa to support the campaign to reduce HIV/AIDS. The next year, Africare awarded him the Bishop John Walker Distinguished Humanitarian Service Award for his efforts to assist in Africa.

In 2004, he went to Kenya to stress the importance of education for the children in that area.

In 2006, he was the recipient of the BET Humanitarian Award and was named one of the nine award recipients by AARP Magazine.

Happy birthday, Harry Belafonte. I love you, America loves you, and the entire world will always love and admire your artistic genius, your steadfast devotion to causes of justice, peace, and your enduring spirit to transform both our country and the world so it is a more compassionate, soulful, and just planet.

I'm going to yield, at this time, to the gentlelady from Texas, Ms. Sheila Jackson Lee, as much time as she may consume.

I want to thank the gentlelady from Texas for her wide- ranging comments, for her very closely held beliefs, and for her very articulate way of joining me in the dialogue this morning.

Mr. Speaker, I now yield to the gentlelady from California, Lois Capps.

Personal Explanation

Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.

Mr. Speaker, I rise today in memory of Marylyn Schmidt, a resident of the State of Michigan, who dedicated her life to the goal of achieving true universal health care for all Americans.

She spent countless hours, day in and day out, organizing, mobilizing, and educating the citizens of Michigan in order to build grass-roots support for passage of a single-payer bill in Congress, H.R. 676. She passionately believed that every person in America should have access to quality, affordable, and accessible health care as a fundamental civil and human right.

I knew Mrs. Schmidt for almost two decades. I had a profound respect for her unique leadership in advocating for human rights, universal health care, and protecting Social Security and Medicare. She belonged to numerous community and social-justice organizations, including the Michigan Improved Medicare for All, the Michigan Alliance to Strengthen Social Security and Medicare, the Michigan Universal Healthcare Access Network, and the Oakland County Welfare Rights Organization. For over 20 years, she fought for the human, economic, and civil rights of the voiceless and the vulnerable citizens of Michigan who wanted nothing more than a better life for themselves and their children.

Thank you, Marylyn Schmidt, for remaining steadfast in your belief that health care should be a fundamental human right in this country. The people of Michigan and all of those you helped and fought for will always remember your kindness, your courage, and dedication to this just cause.

Mr. Speaker, I yield myself such time as I may consume.

I reluctantly rise in opposition to the measure before us, the so- called Private Property Rights Protection Act. Now, while the goal of this legislation to protect property owners and tenants from the abuse of eminent domain is laudable and important, it would, in reality, supplant the work States have already done to respond to the Supreme Court's decision in Kelo v. The City of New London in the 7 years since the Court handed down that decision.

Most importantly, whatever the concerns my colleagues may have about the Kelo decision, the use and abuse of the power of eminent domain, I hope that every Member would look very carefully at the penalty it will impose on States, counties, cities, and towns across the country. Even if they never take a single piece of property, even if a jurisdiction never uses eminent domain at all, the mere possibility that some future administration would use eminent domain in a prohibited manner would cast a permanent cloud over the jurisdiction's finances.

The risk of the catastrophic penalties being imposed over the life of a 10-year or 20-year bond would be enough to destroy or mitigate a city or State's ability to float bonds at any time for any reason. At the very least, our cities and States would be forced to pay a risk premium that would make us envy Greece.

While it would destroy the finances of every community in the country, it would still allow some of the most flagrant abuses of eminent domain today. One glaring example is that the Keystone XL pipeline, and all pipelines, specifically is exempted. Even now, when a Canadian company is threatening farm families with eminent domain for a project that hasn't even been approved, this bill would give TransCanada a free pass. Whatever your concerns, this bill is not the right answer to a very important question.

You see, since 2005, there have been new developments that call into question whether Congress should even act at this point. When this House last considered similar legislation, the Kelo decision was new, and there was real concern that the Supreme Court had opened floodgates to abusive takings of homes, businesses, churches, and farms. The States responded, which is their role in our Federal system. They responded to the concerns of the people who live in those communities to restrain State power and safeguard property rights. In some cases, the State courts have acted to restrain State governments in ways that the Federal law would not.

In response to the Kelo decision, States have moved aggressively to reconsider and amend their own eminent domain laws. More than 40 States have acted, and States have considered carefully the implications of this decision and the needs of their citizens.

Congress should not now come charging in after 7 years of work and presume to sit as a national zoning board, arrogating to our national government the right to decide which States have gotten the balance right and deciding which projects are or are not appropriate. Yet my colleagues who decry an intrusive Federal Government, who exalt States' rights, and who demand that the courts defer to the elected branches of government to make important decisions are not satisfied. They want the courts to interfere. They want a one-size-fits-all, Washington-knows- best solution. They don't want to respect the way States have dealt with this issue.

The power of eminent domain is an extraordinary one, and it should be used rarely and with great care. All too often, it has been abused for private gain or to benefit some at the expense of others.

Has this bill drawn the appropriate line between permissible and impermissible uses of eminent domain? I think that is one of the questions we will really need to consider. We all know the easy cases. As the majority in Kelo said:

The City would no doubt be forbidden from taking

petitioners' land for the purpose of conferring a private

benefit on a particular private party . . . nor would the

City be allowed to take property under the mere pretext of a

public purpose when its actual purpose was to bestow a

private benefit.

But which projects are appropriate and which are not can sometimes be a difficult call.

Historically, eminent domain has been used to destroy communities for projects having nothing to do with economic development as prohibited by this bill. For example, highways have cut through neighborhoods, destroying them. I know about that. Many of these communities have been low-income and minority communities, and many of them have yet to recover from the wrecker's ball. Yet this bill would permit those projects to go forward, using eminent domain, as if nothing had happened. Other projects that have genuine public purposes would, nonetheless, be prohibited.

There is no rhyme or reason for this legislation. I believe, as I did in 2005, that this bill is the incorrect approach to a very serious problem.

With that, Mr. Speaker, I reserve the balance of my time.

It is my pleasure to yield such time as she may consume to a senior member of the Judiciary Committee, my longstanding friend and supporter for many years, the gentlewoman from California, the Honorable Maxine Waters.

Mr. Speaker, I yield 3 minutes to the distinguished gentlelady from Texas (Ms. Jackson-Lee).

Mr. Speaker, I yield the gentlelady 3 additional minutes.

Mr. Speaker, I have no further speakers, and so I yield back the balance of my time.

I yield myself such time as I may consume.

Madam Speaker, Members of the House, we come here this morning as the leaders of the Judiciary Committee, and I have to assume that the chairman of the Judiciary Committee, Mr. Smith, like myself, is deeply disappointed that we're bringing a bill that we've never had a hearing on before the committee before the Congress for disposition.

Here was a bill referred to six committees: Financial Services, Agricultural, Judiciary, House Administration, Ethics, and the Rules Committee. Only one hearing was held in one of these committees on this measure. It's never been before Judiciary or any other committee, and so I want to begin by complimenting the author of this measure, the ranking member, former chairwoman of the Rules Committee, the gentlelady from New York, Louise Slaughter, for a serious and important amendment that has never been treated fairly.

Now, I don't know what the explanation is. Maybe we can get to it during this proceeding. But I think that this is not the way that we want to move forward with a bill that was supposed to get to an insider trading ban that everybody wanted, because there's no reporting requirement in this bill.

So, I will reserve the balance of my time and look forward to the discussion.

Madam Speaker, I am pleased now to recognize the original author of this bill, and because of her deep concern about this matter, I am going to yield the gentlewoman from New York (Ms. Slaughter) as much time as she may consume.

Madam Speaker, I am pleased now to yield as much time as he may consume to the distinguished gentleman from Minnesota, Tim Walz, who joined with the ranking member of the Rules Committee in introducing the original bill.

Madam Speaker, I am pleased to yield such time as he may consume to the gentleman from Virginia, Bobby Scott, the ranking member of the subcommittee to which this measure would have gone had we been able to hold hearings.

Madam Speaker, I am pleased now to yield 2 minutes to the gentleman from Tennessee, Steve Cohen, a member of the Judiciary Committee, one who has worked on this matter even though we couldn't hold hearings.

I yield myself such time as I may consume.

May I ask the distinguished majority leader one question, why he took political intelligence out of this provision?

I yield to the gentleman from Virginia.

Well, I thank the gentleman because there are some Members on the gentleman's side of the aisle that say, if Congress delays action on the political intelligence industry, we will stay in the shadows, just the way Wall Street likes it. So I think we ought to think about that. And I'm hoping that the leader will continue the examination of the political intelligence industry piece.

I am now pleased to yield 1 minute to the gentlewoman from California, Nancy Pelosi, the distinguished leader on our side of the aisle.

Madam Speaker, I yield myself 30 seconds.

I would just like to compliment the distinguished gentleman from California who was an Attorney General himself and is very sharp on these matters. Could you make available to us these 16 drafting errors of the Senate? I'd be delighted to get them from you.

I yield to the gentleman from California.

I thank the gentleman very much.

I'm pleased now to yield 2 minutes to the distinguished gentleman from Maryland (Mr. Cummings), the ranking member of the Committee on Oversight and Government Reform.

Madam Speaker, I'm prepared to close, and I do so by yielding the balance of my time to the distinguished gentlewoman from Texas (Ms. Jackson Lee).

Will the gentlelady yield to me just briefly?

Because we've got the 16 from our distinguished Judiciary colleague Mr. Lungren. These are merely technical errors that are corrected by the enrolling resolution that surely he must have heard about. These aren't errors that would have gone into the bill.

I thank the gentlelady for yielding.

Will the gentleman yield?

Thank you, sir.

Why are we passing this law if the conduct we are prohibiting is already illegal?

Will the gentleman yield?

I want to thank the gentleman for bringing us this information. I will take back to everybody on this side of the aisle not to rush out and try to do any last-minute deals because it is already illegal if you will do the same with the Members on your side.

Mr. Speaker, on December 17, 2010, I regret that I was not present to vote on H.R. 306, H.R. 1162, and H.R. 2606.

Had I been present, I would have voted ``yea'' on all bills.

Mr. Speaker, I yield myself such time as I may consume.

I want to commend the chairman of the Judiciary Committee, the gentleman from Texas, Lamar Smith, for his cooperation in bringing this bill out of committee and through the Congress.

On September 12 of this year, my bill passed the House unanimously. The requirement that judges and judicial branch employees disclose their personal finances promotes openness in the Federal Government. It reduces the risk of corruption, prevents the appearance of impropriety, and also sheds some transparency on what we do in the third branch of government.

Unfortunately, sometimes these required disclosures can include specific information about the filer's residence, a spouse's workplace, a child's workplace, or a vacation home. This information has the potential to place individual judges, employees, and their families at risk. So what we're doing here is allowing a redaction by the Judicial Conference. The bill's redaction authority is critical to ensuring that this information does not get into the wrong hands and the whole idea is to make sure that some of the Federal judges whose lives have been lost and others whose family members have lost their lives by disgruntled litigants will not be made available to them.

The Judicial Conference is very careful in granting redaction authority. And although I would have preferred a permanent redaction authority, I'm perfectly willing to support a 6-year authority with extension possibilities. I look forward to the President signing this bill into law immediately.

I have no further requests for time, and I yield back the balance of my time.

Mr. Speaker, on December 14, 2011, I inadvertently cast ``yea'' votes on the final passage of H.R. 1905 and H.R. 2105. I am opposed to both bills.

Members of the House of Representatives, this issue has never gone before the House Judiciary Committee--never.

I have a letter dated December 14 that says:

``There has been some debate over whether section 1021 of the National Defense Authorization Act merely restates existing law or would, for the first time, codify authority for the President to indefinitely detain, without charge, virtually anyone picked up in antiterrorism efforts, including United States citizens arrested on United States soil.

``Please find attached a letter from Judge William Sessions, a former Federal judge and former Director of the FBI under Presidents Reagan, Bush, and Clinton, explaining that current law on this point is unclear, and that enacting section 1021 of this act would dangerously expand the power for indefinite detention.''

I would like to place in the Record sundry correspondence, including the letter from Judge Sessions.

The Constitution Project,

Washington, DC, December 9, 2011.

Dear Representative McKeon and Fellow Conferees, I am

writing to you with grave concern over the National Defense

Authorization Act of 2012 (NDAA). It is highly regrettable

that the Senate passed the NDAA without first stripping it of

dangerous provisions regarding the treatment of detainees.

But it is not too late to act; as conferees, it is now your

task to remove these harmful provisions before the NDAA

becomes law. I strongly urge you to do so, and to preserve

both our constitutional traditions and our most effective

tools in the fight against terrorism.

If enacted, these detention provisions would for the first

time codify authority for methods such as indefinite

detention without charge and mandatory military detention,

and would authorize their application--on the basis of

suspicion alone--to virtually anyone picked up in

antiterrorism efforts, including those arrested on U.S. soil.

In effect, the U.S. military would become the judge, jury and

jailer of terrorism suspects, to the exclusion of the FBI and

other law enforcement agencies.

An astounding array of individuals from across the

political spectrum opposes the over-militarization of our

counterterrorism efforts, and for good reason. I have

attached Beyond Guantanamo: A Bipartisan Declaration,

organized by The Constitution Project and Human Rights First,

in which I joined with over 140 additional former government

officials and practitioners from across the political

spectrum in explaining that federal courts are the most

effective mechanism for trying terrorism cases, and that

indefinite detention without charge runs afoul of our

Constitution and would harm U.S. interests globally. As a

former federal judge, former U.S. Attorney, and former

director of the FBI, I myself can attest to the competence of

our nation's law enforcement officers and civilian federal

courts, as well as the urgency to preserve these tools for

use in our counterterrorism efforts.

Secretary of Defense Leon Panetta similarly opposes this

transfer of responsibility to the military. Indeed, virtually

the entire national security establishment--including James

Clapper, the director of national intelligence; Robert

Mueller III, the director of the FBI; David Petraeus, the

director

of the CIA; White House Advisor for Counterterrorism John

Brennan; Lisa Monaco, the assistant attorney general for

national security; and Jeh Johnson, general counsel for the

Department of Defense--has warned that further restricting

the tools at our disposal to combat terrorism is not in the

best interest of our national security. I implore you to heed

their warning.

With regard specifically to Section 1031 from the Senate

bill, some have argued that Section simply reiterates current

law, and by doing so maintains the status quo. That is not

the case. This very dangerous provision would authorize the

President to subject any suspected terrorist who is captured

within the United States--including U.S. citizens and U.S.

persons--to indefinite detention without charge. The

provision does not limit such detention authority to people

captured on the battlefield. Importantly, although subsection

(e) of this provision states that the provision should not be

``construed to affect existing law or authorities'' relating

to detention of ``persons who are captured or arrested in the

United States,'' the reality is that current law on the scope

of such executive authority is unsettled.

In fact, on two occasions when this issue was on track to

come before the U.S. Supreme Court, the executive branch

changed course so as to avoid judicial review. Specifically,

in both the Padilla case in 2005-06 (involving a U.S.

citizen) and the al-Marri case in 2008-09 (involving a legal

permanent U.S. resident), the U.S. government claimed that

the President had the authority to detain a suspected

terrorist captured within the United States indefinitely

without charge or trial. In both instances, however, before

the Supreme Court could hear the case and evaluate this

claim, the Justice Department reversed course and charged the

defendant with criminal offenses to be tried in civilian

court. Thus, this extreme claim of executive detention

authority for people captured within the United States has

never been tested, and the state of the law at present is

unclear. Passage of Section 1031 would explicitly provide

this authority by statute for the first time, thereby

clearly, and dangerously, expanding the power for indefinite

detention.

I firmly believe that the United States can best preserve

its national security by maintaining the use of proven law

enforcement methods and our well-tested traditional criminal

justice system to combat terrorism. By contrast, enacting the

NDAA without first removing the current detainee provisions

could pose a genuine threat to our national security and

would represent a sweeping and unnecessary departure from our

constitutional tradition.

I therefore urge you, as conferees, to strip these

dangerous detainee provisions from the NDAA. Thank you for

your consideration.

Sincerely,

William S. Sessions.

Will the gentleman let me recognize him on his own time? I only have 3 minutes.

I would like to remind my colleagues that provisions within the conference report impact our civil liberties and should have been referred to the Judiciary Committee for review. The conference report dangerously expands existing authorizations pertaining to individuals detained by the United States government and the military.

First, Section 1021 grants broad discretionary authority that could permit the indefinite detention of United States citizens, areas of law that should have been referred to the Judiciary Committee.

Secondly, Section 1021 is not the current law of the land and instead is new and dangerously extensive detention authority that has its origins in case law that never involved questions of whether American citizens could be indefinitely detained.

Third, Section 1022 violates due process by permitting indefinite military detention without charge or trial.

Next, the conference report ignores the concerns of members of our intelligence community, domestic law enforcement, and former generals who have opposed these provisions because they would undermine the ability of the government to interrogate and prosecute suspected terrorists.

Lastly, the conference report displaces the legal expertise necessary for trying successful terrorism cases.

First, Section 1021 grants broad discretionary authority that could permit the indefinite detention of United States citizens. The indeterminate breadth of conference report provides little or no protection against the indefinite detention of United States citizens. In addition, it threatens our constitutional protections and civil liberties.

I would like to know why an amendment to exempt American citizens from indefinite military detention failed in the Senate. If we were concerned about preserving the civil liberties and constitutional protections for American citizens, why did it fail? In addition, if existing laws prohibit this, why did we not specify this in the bill? Although supporters of this bill continue to claim that this bill would not expand detention authority inside of the U.S., that is just not the case.

There are too many questions that affect our civil liberties in the conference report that should have been referred to the Judiciary Committee for review and clarification. For example, Section 1021 is broad in its definition of ``hostilities'', what constitutes ``directly supporting hostilities in aid of enemy forces,'' and does not address the question of when or how do we determine ``the end of hostilities.''

Former FBI Director under Reagan, Bush, and Clinton and former Judge, Williams S. Sessions, recently wrote to the conferees explaining that ``This very dangerous provision would authorize the President to subject any suspected terrorist who is captured within the United States--including U.S. citizens and U.S. persons--to indefinite detention without charge. The provision does not limit such detention authority to people captured on the battlefield. Importantly, although subsection (e) of this provision states that the provision should not be `construed to affect existing law or authorities' relating to detention of persons who are captured or arrested in the United States,' the reality is that current law on the scope of such executive authority is unsettled.''

With so much ambiguity, this bill could authorize detention--into perpetuity--United States citizens who in some instances--such as making statements protected under the First Amendment--could arguably be considered subject to indefinite detention under this provision.

In addition, Section 1021 does not expressly address whether U.S. citizens or lawful resident aliens may be determined as ``covered persons'' subject to detention under the section. Although the conference report includes the amendment offered by Senator Feinstein, the conference report leaves definitions that are very broad of who can be detained without charge or trial.

Secondly, let me remind my colleagues that Section 1021 is not the current law of the land. The definition in Section 1021 was used by the Obama Administration to continue to detain indefinitely without charge or trial detainees at Guantanamo Bay, GITMO. This definition was used in court cases dealing with GITMO detainees, NOT American citizens. Thus, the question is whether this Congress wants the same GITMO detainee standard applied to American citizens? Do you want our government treating American citizens that way?

Section 1021 states that ``Nothing in the section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.'' This does not mean that American citizens are protected.

I am very troubled today to have learned that when an amendment came up in the Senate to address these protections for American citizens, members of the Senate stated that they would want room in the law for an American citizen to fall under this new and broad definition.

No one at GITMO is an American citizen and the only cases that deal with this type of indefinite detention without charge or trial are GITMO detainee cases. So there is no good law out there.

Thus, if existing laws do impact the civil liberties of American citizens, then we need to be changing those laws instead of codifying them.

Thirdly, the conference report violates due process and rejects our American values. The United States Constitution grants specific due process rights to citizens that guarantee they will be charged and brought to trial in the event they are apprehended by law enforcement. However, Section 1022 militarizes our justice system and could allow United States citizens to be detained by the military without charge or trail.

We take an oath every Congress to uphold the Constitution and to guard its values and protections for American citizens. Earlier this year, members of this body stood before the American people and read the Constitution. Yet I must inquire whether that was theatrics or did we intend to follow through with our obligation? The broad definitions in 1022 could include American citizens under indefinite military detention, and thus must be opposed if we are to be protectors of the Constitution.

Next, this Congress has ignored the concerns of our national intelligence community. Changes into Section 1022 will undermine the ability of the government to interrogate and prosecute suspected terrorists.

The Secretary of Defense, Leon Panetta, Director of the FBI, Robert Mueller, Director of National Intelligence, James Clapper, CIA professionals, along with dozens of retired generals and professional interrogators have rejected this proposal because it is a militarization of our justice system and some have stated that these provisions are unwise and unworkable.

Members of the House claim that out of respect for our military we need to pass this authorization. However, passing this bill ignores

their concerns and will negatively impact operations that preserve our national security. Under the provisions of the conference report, intelligence and domestic law enforcement would lose authority to take further action with terrorist suspects in U.S. custody absent a wavier from the President--which still thwarts the information gathering that is crucial at that time of arrest.

This provision in the conference report will cause controversy and chaos in handling terrorism investigations. Tying the hands of our intelligence and law enforcement professionals would also cause unnecessary delays in justice.

These provisions also harm our national security by threatening the global reputation of the United States. Under President Obama, the image of the United States has been restored as well as the rule of law. However, the conference report rejects our national values of democracy, due process, and justice by authorizing the military's role in domestic law enforcement.

Lastly, the conference report displaces the legal expertise necessary for trying successful terrorism cases. A bi-partisan alliance of our national defense and intelligence community--including retired generals--have spoken out against provisions in Section 1022 that provide for military commissions to conduct terrorism trials.

The military has not even completed 3 percent of the case load that the Justice Department has completed. Military tribunals have completed six terrorism cases, compared to the Justice Department's case load of close to 400 cases with a 90 percent conviction rate to go along with that. To date, there is no record of any federal court unable to convict a terrorist.

This is not a responsibility the military wants, therefore Congress should not insist on the use of military tribunals in order to sound tougher on terrorists. We should not treat terrorists like warriors. Federal courts and our Justice Department can deliver harsher sentences and are better equipped to handle such cases. In addition, Article III Judges and the Department of Justice are more versed in the body of law that covers such cases.

I was also disappointed that the conference report failed to adopt Senate-passed language proposed by Senators Merkley, Paul, and Lee calling for expedited transition of responsibility for military and security operations in Afghanistan to the Afghan government.

Specifically, this amendment would have required the President to devise and submit to Congress a plan to expedite the drawdown of U.S. combat troops in Afghanistan and accelerate the transfer of security authority to Afghan authorities.

The conference report amended the amendment's language to change the focus from drawing down our troop footprint to empowering and building up the Afghan security forces. While a worthy goal unto itself, this language changed the focus of the amendment and undermined the the message expressed by the entire Senate through the Merkley Amendment. Including this provision would have sent an important message about our country's commitment to bringing the war in Afghanistan to a responsible end. It is unfortunate that the report does not reflect a position supported by a majority of the American people.

I also support efforts to enhance the ability of Customs & Border Protection to prevent counterfeit goods from being imported into the United States. However, Section 8 of this bill will disrupt the flow of genuine brand name products into the United States.

This is true because many of the goods which CBP inspectors view with suspicion are in fact genuine goods, lawfully moving in distribution streams parallel to the authorized distributors. These transactions are desirable because they provide U.S. consumers with price competition and wider distribution of brand name products.

However, the existence of these transactions is often under attack by trademark and copyright owners who actively seek to control resale pricing and downstream distribution of the products they have already sold into commerce. Section 8 will give anti-competitive companies a new tool by giving them confidential information about competing parallel imports at their times of arrival, while they are still detained by CBP and unavailable to the importer, and without giving the importer an opportunity to prove its goods are genuine, and without even giving notice to the importer that its information has been shared with a competitor seeking to prevent its lawful transaction.

This problem could be minimized if Section 8 is limited to goods raising national security concerns or purchases by the military. I believe that is the intent of this provision of the Department of Defense Appropriation bill.

This problem could also be minimized if this bill or CBP would adopt the safeguards which the Administration proposes be included in the Customs Reauthorization Act. This would be appropriate since Section 8 provides that it sunsets when the Customs Reauthorization is adopted. The safeguards include a requirement that the Secretary find there is a need for disclosing confidential information, and that CBP provide the importer with notice and an opportunity to respond before any confidential information is released to other private parties.

For some reason, we are adopting this provision in anticipation of a more thoughtful approach in the Customs Reauthorization Act. This is not a wise or needed course of action. CBP today can provide redacted samples to IP owners and very often that is sufficient to determine if they are genuine or counterfeit.

CBP today keeps suspicious goods out of U.S. commerce while it determines if they are genuine. The safeguards proposed by the administration will not put suspicious goods into commerce nor delay the final determination of CBP because there is an existing 30-day requirement that is not altered by any proposed legislation.

We must not be willing to compromise our civil liberties and American values for the false sense of enhancing security. I urge members to vote no on the Conference report and do what is right for America, its people, and the rule of law.