Last night during the floor debate of the annual national defense policy bill, I had the opportunity to lead the opposition to an amendment offered by House Armed Services Committee Ranking Member Adam Smith (WA-09).  His amendment would overturn the inclusion of language agreed to last year on a bipartisan basis to prevent the transfer of detainees to the United States for the purpose of standing trial.

Nearly ten years have come and gone and the terrorists responsible for the 9/11 attacks still have not stood trial.  Allowing these detainees to be transferred to the United States would undoubtedly afford terrorists a host of constitutional rights, putting their convictions in jeopardy and further impeding the delivery of justice.

While on the floor, I asked a simple question, “When, Mr. Chairman, is somebody going to stand up for the rights of the victims of terror who asked, ‘when are we going to start getting prosecutions’?” You can watch my remarks on the floor by clicking here or on the image below.

Today, the House Judiciary Subcommittee on the Constitution, under the direction of Chairman Trent Franks, will hold a hearing entitled, “Can We Sue Our Way to Prosperity?: Litigation's Effect on America's Global Competitiveness.”  The hearing will examine the increasing costs of America's litigation system and the effect of those costs on America's global competitiveness. The hearing will attempt to quantify the costs and the impact of our litigation system on American companies’ ability to compete, and discuss specific federal laws that arguably impose undue costs on the economy.

Consider the following:

• A 2008 Department of Commerce report found that U.S. tort costs as a percentage of GDP are triple that of France and the United Kingdom and double that of Germany, Japan and Switzerland.  These numbers make this issue an increasing concern for the United States’ ability to compete in the global economy.
• Additionally, a report published by Towers Watson found that the U.S. tort system cost $248.1 billion in 2009, which translates to $808 per person.
• A report, written by Judyth Pendell of the AEI-Brookings Joint Center for Regulatory Studies, determined that the tort liability price tag for small businesses in America is $88 billion a year. Small businesses bear 68 percent of business tort liability costs, but take in only 25 percent of business revenue. For a business with $10 million in annual revenue, the average tort liability cost is $150,000 per year.

What do you think about the litigation system’s threat to America’s global competitiveness?  Weigh in with your thoughts.

Over the past several years, we have seen an increasing number of circumstances where U.S. judges have interjected international law into their rulings, allowing laws from other countries to supersede the laws of our own Constitution.

I believe this is wrong. It is the responsibility of our Courts to interpret the U.S. Constitution as was written by our Founding Fathers.

I recently cosponsored a bill to prevent the misuse of foreign law in Federal courts. H.R. 973 plainly states that “In any court created by or under Article III of the Constitution of the United States, no justice, judge, or other judicial official shall decide any issue in a case before that court in whole or in part on the authority of foreign law.”

You can read more about this legislation in an article written by the bill’s sponsor, Congresswoman Sandy Adams, in the Washington Times.

Our laws should be measured against our Constitution, not international precedents. What are your thoughts on this bill?

UPDATE (12/14/2011): The House Judiciary Committee has compiled the following summaries of U.S. court cases relying on foreign law:

Last year, in Graham v. Florida, the Supreme Court issued a blanket holding that the Eighth Amendment bars life without parole sentences for all non-homicide juvenile defendants, citing a "global consensus "against the sentencing practice. This "global consensus" was used to buttress the Court‘s claim that "evolving standards of decency" barred such sentences. The Court reached this conclusion despite that, at the time of the decision, 37 states and the District of Columbia allowed juvenile life without parole sentences. Nonetheless, the Court apparently placed a premium on the judgment of foreign legislators over American legislators in interpreting the bounds of "cruel and unusual punishment" under the American constitution.

In the 2005 case Roper v. Simmons, the Court relied on international law as evidence of an international consensus against the death penalty for juvenile offenders in holding that the Eighth Amendment prohibited the death penalty for a 17-year old who plotted and executed a plan to murder an innocent woman by breaking in to her home, binding her, wrapping her entire face in duct tape, driving her to a bridge, and throwing her into the Meramec river in Eastern Missouri. Justice Scalia wrote in dissent, joined by Justice Thomas and Chief Justice Rehnquist, that "Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage."

In Lawrence v. Texas, the 2003 decision striking down a Texas statute prohibiting same-sex sodomy, Justice Kennedy, writing for a majority, cites for support a decision by the European Court of Human Rights allowing homosexual conduct as evidence of a lack of world consensus on the illegality of such conduct. Whatever one‘s views on that issue, it should be evident that the relevant consensus behind American law is not a world consensus, but rather the consensus of those in the United States on the meaning of the words used in the Constitution and state laws when originally enacted.

As Justice Scalia stated in his dissent in Lawrence, "The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this Court ... should not impose foreign moods, fads, or fashions on Americans."

In 2002, in Atkins v. Virginia, Justice Stevens, in the majority opinion, struck down laws allowing the mentally retarded to be sentenced to death, on the grounds that "[t]he practice ... has become truly unusual, and it is fair to say that a national consensus has developed against it."

Strikingly, the footnote following that sentence, presumably to support the proposition of a "national consensus," cites to the views expressed in the brief filed in the case by the European Union. This appears to have been an attempt to hide the fact that no such "national consensus" existed at the time, as the laws of 20 of the 38 states allowing capital punishment allowed such executions at the time.

In Grutter v. Bollinger, which upheld the use of racial preferences in university admissions, Justice Ginsburg, in a concurrence joined by Justice Breyer, began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary "maintenance of unequal or separate rights for different racial groups." She then she cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which, Justice Ginsburg noted in a speech a few weeks later, "sadly, the United States has not ratified."

The opening sentence of the Fifth Amendment is a guarantee that "No person shall be held to answer for a capital ... crime, unless on a presentment or indictment of a Grand Jury ..." Further, the Double Jeopardy Clause of the Fifth Amendment is a prohibition against being "twice put in jeopardy of life" for the same offense, and the Due Process Clause requires "due process of law" before an accused can be "deprived of life ..."

Several years earlier, in Thompson v. Oklahoma, Justice Stevens in a plurality opinion stated that "The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by ... the leading members of the Western European community." He then cited the laws of West Germany, France, the Soviet Unions, Canada, the Scandinavian countries, and Switzerland, among others, many of which prohibit capital punishment entirely, despite the fact that the U.S. Constitution explicitly provides for capital punishment in multiple constitutional provisions.

And in a concurring opinion in Nixon v. Shrink Missouri Government PAC, Justice Breyer cited opinions by the European Commission of Human Rights and a Canadian court for the proposition that campaign finance laws should be judged according to various balancing tests.

The citation of foreign decisions in majority Supreme Court opinions follows their earlier citation largely in dissenting opinions. Justice Breyer, joined by Justice Stevens in his dissent in Printz v. United States, drew on the experience of the federal systems in Germany and the European Union in his analysis of the appropriate relationship between the individual American states and the federal government. As Justice Scalia appropriately wrote for the Court in the majority decision in that case – a decision that was joined by Justices O‘Connor and Kennedy whose positions appear to have since changed – "Justice Breyer's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution ..."

Even earlier, Justice Brennan, dissenting in Stanford v. Kentucky, stated that the "rejection [of capital punishment] generally throughout the world, provide to my mind a strong grounding for the view that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders ..." To this the majority of the court replied, "We emphasize that it is American conceptions of decency that are dispositive."

As you may know, a federal judge this week ordered the release of an al-Qaeda terrorist organizer from Guantanamo Bay. You can read about that here in the Wall Street Journal.  

Thank you to my colleague Congressman Lamar Smith for leading efforts on the Judiciary Committee, which I sit on, in addressing this issue. You can read more about my work on this issue here.

Smith Urges DOJ to Appeal Ruling on Gitmo Detainee

Classified Ruling May Lead to Release of High Value Detainee

Washington, D.C. – In a letter today to Attorney General Eric Holder, House Judiciary Committee Ranking Member Lamar Smith (R-Texas) urged the Justice Department to appeal a ruling that may order the release of Guantanamo Bay detainee Mohamedou Ould Slahi.  

As the letter states, Slahi was considered by Pentagon officials to be the “highest value detainee at the facility” and that he was the “key orchestrator of the al Qaeda cell in Europe.”   

Ranking Member Smith: “It is certainly possible, if not likely, that Mr. Slahi will reengage in efforts to commit terrorist attacks against innocent Americans if allowed to go free.  This ruling clearly puts the American people in danger and should not be allowed to stand.  The primary responsibility of any Administration is to protect the American people.  As such, the Justice Department has no choice but to immediately appeal this ruling.  Any other action is a dereliction of duty and puts the American people at risk.”   

According to media reports, on Monday, U.S. District Court Judge James Robertson granted Slahi’s habeas petition, meaning the Judge agreed that he was being held without just cause. Ranking Member Smith requested a full briefing and a copy of the Judge’s classified opinion.

Over the past year, Americans have made it clear that they opposed transferring potential terrorists from Guantanamo Bay to American soil for civilian trials. Yet after widespread outcry over holding the trials in New York City just miles from the site of the 9-11 terrorist attacks, the Administration has continued to consider other U.S. locations – including our military installations.

Our military bases are the training hubs for our men and women in uniform, and they are where our military families live and go to school. Trying potential terrorists on these bases will present unnecessary security risks, and moving any terrorist here is simply unacceptable.

I recently cosponsored H.R. 4738, which would prohibit the use of a military installation in the U.S. for a court trial of any accused terrorist. I introduced similar legislation last year that expressly prevents Guantanamo Bay detainees from being transferred to Virginia.

The questions remains whether, we as American citizens, are comfortable placing a target on our backs right here in our own communities. And the answer continues to be a resounding “no.”

It was late on a hot July evening this summer when I arrived back from Guantanamo Bay.  I remember going directly to the computer to pen my impressions on closing the detention facility and transferring terrorists to the United States. "A monumental mistake for our nation," is what I wrote. 

Today, the Administration is expected to announce that it will send 9/11 terrorism detainees from Guantanamo Bay to be housed in Illinois. This follows an announcement a few weeks ago that several detainees, including self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed, will be prosecuted just blocks away from Ground Zero in NYC before a civilian federal court. I wrote about that in a blog entry here. 

The 9/11 conspirators are enemies of war, not common criminals. Moving terrorists in close proximity to American citizens can in no way make us safer. It is a security risk we cannot afford to take, and I am taking every action available to me to stop it.  

I recently signed a discharge petition for the Keep Terrorists Out of America Act, which would force the bill out of committee and onto the floor for a vote. If we are successful in collecting the 218 signature necessary, the House would be forced to vote on stopping the transfer or release of detainees held at the Guantanamo Bay detention facility into the United States.  

I've also joined with fellow members of the House Judiciary Committee and Armed Services Committee in cosponsoring resolutions of inquiry (H.Res.920 and H.Res. 924) to force Attorney General Eric Holder and the Department of Defense, separately, to release documents related to the Administration’s decision to try Khalid Sheikh Mohammed and the other 9/11 conspirators in federal court in New York City – the American public deserves to know the potential ramifications of relocating and trying them in the United States. 

This afternoon, I will attend a House Armed Service Committee markup on H.Res. 924. I am hopeful that we can bring this bill out of committee and onto the Floor for a vote, so we can make it known that the protection of American citizens and justice for the families who have lost loved ones as a result of 9/11 and terrorism abroad is our number one priority.