Henry Hyde

Mr. HYDE

Mr. HYDE. God bless you.

Mr. HYDE

Mr. HYDE. I thank the gentleman for yielding me this time. Madam Speaker, I have a prepared statement here which I will try to get through, but I just want to say this. I, in a long life have never met a nicer person than Carlos Moorhead. He was a gentleman. He had a sense of patriotism. He loved this country, he loved the law, he loved the Committee on the Judiciary, and we loved him back. Today I rise to pay tribute to a man who dedicated his professional life to the service of this country and to the people of California. Most Members are familiar with Congressman Moorhead who served this body with distinction until his retirement at the conclusion of the 104th Congress. He was born in Long Beach, CA. He was a veteran of World War II, a retired judge advocate lieutenant colonel. Carlos was first elected to Congress in 1972 to represent the 27th District of California, which includes his hometown of Glendale where this post office is located, along with Pasadena, Burbank, La Crescenta, and San Marino. As a member of the Committee on the Judiciary and later chairman of the Subcommittee on the Courts and Intellectual Property, Carlos led some of the most controversial and important legislative debates that we have ever had in Congress. Throughout his 24 years of service to the people of California, Carlos typified the very best of what the House has to offer, vigorous debate by a gentleman statesman. He worked hard and was highly respected by Members on both sides of the aisle, as evidenced by the fact that all 52 members of the California delegation are cosponsors of this legislation. He proved himself to be one of the most versatile and adaptable legislators this body has seen. He consistently had the most conservative voting record of any Member of Congress, and that did not stop him from being an effective legislator during his 22-year tenure in the minority. Always a loyal statesman, Carlos was also skilled in the art of the possible. He had a special ability to get past politics and negotiate legislation that achieved the best result possible under the circumstances. Nevertheless, after 22 years in the minority, Carlos wasted no time adapting to the majority. He proved to be one of the most efficient and effective subcommittee chairmen of the 104th Congress. In just 2 years, he managed to favorably report several of the most important and controversial elements of the Contract With America. He went on to break decades-old log jams of legislation in the area of patents, copyrights, trademarks, and the Federal courts. In his short tenure as chairman of the Subcommittee on Courts and Intellectual Property, Carlos was responsible for the enactment of 14 public laws, both qualitatively and quantitatively. That was the best record of any subcommittee chairman. I join with pride the California delegation in saluting this man of service, a great patriot, and wish him and his wife, Valerie, and his five children and grandchildren the very best.

Mr. HYDE

Mr. HYDE. Mr. Speaker, I wish I had more time to answer the gentlewoman from New York. She is a wonderful person. She is a sincere person. Her motives are most noble, and I wish everyone on her side would understand this is not politics. This is a tough issue for anybody. We happen to believe in protecting the unborn child. We happen to think the health of the mother does not equal the life of the unborn. That is not a good trade-off. That is where we get stuck. We hear from doctors, like Dr. Hearn, who wrote the book on abortion, that if a woman is pregnant she is in a life-threatening condition. Do we want him to make the decision on what is grievous physical health? We have problems, but it is not that we are not willing to negotiate on them. Mr. Speaker, abortion is not mentioned in the Constitution. The abortion license was an invention by seven Supreme Court justices. But cruel and unusual punishment is in the Constitution. And by any definition, partial-birth abortion is cruel and unusual punishment, punishment for the capital crime of being unloved and unwanted. Every abortion happens over somebody's dead body. We hear a lot about the woman, and we should, but we do not hear a scintilla about the little girl baby, the little boy baby whose heart is beating wildly and who is flailing, their having been almost delivered and who want to live. We do not hear about them. Every abortion results in a violent death, whether the abortionist uses dilatation and curettage or the chemical warfare of saline injection which scalds the little baby to death that is called salting out, or RU-486 chemical warfare against the little baby, or the infamous suction machine, abortion means violent death in the womb. But partial-birth abortion adds a gruesome dimension to this cruelty by reaching the level, or should I say the depth, of infanticide. A word about truth. America is committed to truth. ``We hold these truths,'' that great Virginian Jefferson wrote. ``The truth will make you free,'' we tell our children. How many times have we sung the majestic words from the ``Battle Hymn of the Republic,'' ``His truth goes marching on?'' Well, Mr. Speaker, the whole case for partial-birth abortion is based on deception and untruth. And that is not surprising, because the history of the pro-abortion rights movement is replete with one falsehood after another. And I frankly get tired of being lied to. Bernard Nathanson, a doctor who ran the biggest abortion clinic in America, wrote a book called ``Aborting America.'' And he said ``I cannot escape the notion that I have presided over 60,000 abortions.'' But concerning the number of back-alley abortions, he said we made the figures up. He is a founder of the National Abortion Rights Action League. He and a man named Lawrence Lader concocted figures because they sounded good about back alley abortions as a justification for their organization dedicated to legalizing abortion. ``We made up the figure 10,000 because it had a nice round sound to it.'' That was a lie. Roe versus Wade was a lie. Norma Jean Corvey, who was Jane Roe, said she never was raped. The case was presented as a rape situation to make it more poignant. But later, when she became pro-life, she admitted that she lied; that she was not raped. So the foundation of Roe versus Wade was a lie. Then we have partial-birth abortions, where Planned Parenthood told us that anesthesia kills the little baby. The baby does not feel pain. The mother is anesthetized. The anesthesiologists came in and went ballistic. They said enough anesthesia to kill the little baby would kill the mother. ``We do not want people to shy away from taking anesthesia'' they told us. That is a lie. Then, of course, we have the famous Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, who in an article in the American Medical News said on the night in November 1995, when he was on ``Nightline,'' he ``lied through his teeth.'' He lied through his teeth about how many of these abortions are done and at what time in the pregnancy. So deception. Lies. I get tired of it. Now, we are not stopping abortion, as the gentlewoman points out, but we are stopping a loathsome, grisly by-product of the mindset that treats people as things and as objects. We are saying halt this cruelty now and not tomorrow. I want to address the President, if I may presume to do so. On June 12 in 1987 at the Brandenburg Gate, Ronald Reagan challenged General Secretary Gorbachev. He said, ``Mr. Gorbachev, tear down this wall.'' And as a result of that wall finally coming down, a new birth of freedom, that wonderful phrase, suddenly appeared for millions of people. Well, there is another challenge that I would like to make, and I do not presume to be Ronald Reagan nor do I ascribe the President as Mr. Gorbachev, but the challenge is as noteworthy as the Berlin Wall, and that is because it means life and death to thousands of endangered tiny defenseless humans, sign this bill, Mr. President, then the prayers of millions and even the inaudible prayers of the little yet-to-be-born will be answered. Mr. President, stand between them and a gruesome death. Cruel and unusual punishment. We can provide them with life and with hope, and I ask the President if he has not been lied to enough by these people who are so fearful that the abortion license will be encapsulated a little bit more than it is, be a little less free, a little less wanton. They are so fearful of that, they will not give an inch. This procedure is inhuman. Animals of the forest would not treat their young this way. So all we say is we have been lied to enough. This does not impair abortions. They will go on merrily every day. We will get to them. Mr. President, sign this bill.

Mr. HYDE. Does the gentleman not have an answer to my question?

Mr. HYDE. Mr. Speaker, reclaiming my time, I do not talk about the Supreme Court.

Mr. HYDE. I yield to the gentleman from Maryland.

Mr. HYDE. Mr. Speaker, I would ask a question of the last speaker. How does the gentleman's definition in his bill trump the Supreme Court, which defined health in Doe versus Bolton as a state of emotional well-being? How does his mere statute trump the Supreme Court's definition of health?

Mr. HYDE. I welcome the gentleman to the ranks of pro-lifers.

Mr. HYDE. Well, let us hear it, I am running out of time.

Mr. HYDE

Mr. HYDE. Mr. Chairman, this is a fascinating debate. I listened to my good friend, the gentleman from Texas [Mr. Stenholm], talk about the scientists. I do not think you have to be a scientist, rocket or otherwise, to read the plain language of the Constitution: ``The actual enumeration,'' those are not tough words, ``shall be made within 3 years after the first meeting of the Congress.'' And then a constitutional scholar, the gentleman from North Carolina [Mr. Watt], brought in the entire text. He said, ``in such a manner as they,'' meaning Congress, ``shall by law direct.'' Well, you cannot by law amend the Constitution. You cannot pass a statute and erase the first three words of article I, ``the actual enumeration.'' It is a stretch to ask us to trust the sampling of the population to an administration that has shown, at best, a reckless disregard for the letter and the spirit of the law. It goes beyond the Constitution. We have a statute. Title 13, section 195, says, ``Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the secretary shall, if he considers it feasible, authorize the use of the statistical method.'' It specifically excludes counting by sample, by guess, a determination, ``for the purposes of apportionment.'' We want to count everybody. If they are under the bridges, go down there and count them. You are getting paid to count them. Why is that less accurate than guessing how many people are under the bridge? Your administration does not exactly wear a T-shirt saying, ``trust me,'' and engender an awful lot of confidence to have you count how many people there are and where they are and what the districts shall be in the next 10 years.

Mr. HYDE

Mr. HYDE. Mr. Chairman, I yield myself the balance of my time.

Mr. HYDE. Mr. Chairman, some years ago there was a great defense lawyer who worked out of Chicago. His name was Charles Darrow, and he was known as attorney for the dammed because he represented people who committed serious crimes, capital crimes, Loeb and Leopold, and he was very successful in helping them escape the penalties of the law. If I were practicing law and I could pick my clients, I would choose to represent the unborn child of a woman who is in prison. I cannot think of a more humiliating, more humble circumstance, more powerless, more unwanted, more unthought about, more inconvenient than a poor tiny little child. We did not hear much about the child. We heard about the women, and God knows the woman is suffering and has had the cards dealt to her from the bottom of the deck, and needs and deserves and must have our compassion, but for God's sake, 10 seconds for the little tiny child made in the image and likeness for God. Forgive me, but I believe that little child is precious, has an immortal soul, has a destiny, and give that little child a chance. Love that little child. There ought not to be a deficit of compassion and of love, not a failure of imagination. Think about that little tiny powerless human life that cannot vote, cannot rise up in the streets, cannot escape, depends on the care and the concern of those around. Now all this amendment does is strike the part of the bill that says no Federal money to pay for abortions for people who are incarcerated in prison. That is all. It does not deny an abortion. God help us, if the woman wants to exterminate her unborn child, fine, the law does not forbid her, and the prison will escort her to private premises; and if it is a question of money, let Planned Parenthood, which gets millions of dollars, pay for the extermination, the killing, not of that little clump of cells, not of the products of conception, but that tiny little living, breathing infant that, given a chance at life, might well be a human being who could save our country or compose music or just be a decent citizen. Do not be so pessimistic. There are places that will take these children within walking distance of this building. Saint Coletta's. There are care and counseling centers all over this country. Birthright, they will take that little child. Mother Theresa said the great tragedy is to say there is not room for one more little baby. Think of the baby. I will think of the woman, I will pray for the woman, I will work to make conditions ameliorated for them. Will my colleagues please think of the little child for a second? A second? Mr. Chairman, I yield back the balance of my time.

Mr. HYDE. Mr. Chairman, I yield 30 seconds to the gentleman from New Jersey [Mr. Smith].

Mr. HYDE. Mr. Chairman, how much time do I have remaining?

Mr. HYDE. Mr. Chairman, I yield 5 minutes to the distinguished gentleman from New Jersey [Mr. Smith].

Mr. HYDE

Mr. HYDE. The only reason it is here now, I saw the Murtha amendment, it was coming to the floor, and I thought we could do it better. That is all. I am trying to improve someone else's amendment to make it fairer, to make it not too broad, and to give a standard. That is why we are here. That is not to say we will not deal with it in the Committee on the Judiciary, I am sure we will, but there may be no need to after it passes.

Mr. HYDE. Mr. Chairman, will the gentleman yield?

Mr. HYDE. Mr. Chairman, reclaiming my time, let us pass this law and then we will have some experience and see how many cases are brought that they cannot prove substantial justification. To take the gentlewoman's version of things, every case is substantially justified. I am telling Members in the real world lives are ruined, people are bankrupted, and it is not just, and we have a chance to remedy it and we ought to. Mr. Chairman, I yield back the balance of my time.

Mr. HYDE. Mr. Chairman, there are 13 percent that were not, and if the litigation against them was not substantially justified, we are not talking about a lot of money to give them justice, are we?

Mr. HYDE. Mr. Chairman, reclaiming my time, I do not know the gentlewoman's personal experience. Most people are not indicted by the U.S. attorney. But I can imagine, and I know people who have been, what a shattering experience it is.

Mr. HYDE. I yield to the gentlewoman from Michigan.

Mr. HYDE. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, first of all, the judge makes the decision; the U.S. attorney does not, the jury does not. The judge who has heard the case has heard all the evidence. Then, after the trial is over and the verdict is in, the judge then listens to the Government and says, ``What was the substantial justification for bringing this suit?'' So the judge decides. As for yielding secrets and classified information, that has been taken care of in the courts for many years. The judge can hear the evidence in camera by himself. Nothing needs to be publicly disclosed. Probable cause is not the same as substantial justification. The cases recite that. There are ninth circuit cases, there are all sorts of litigation in the Equal Access for Justice Act, 17 years of that which say that, ``You may have probable cause, you may have an indictment, but you're not required as the prosecutor to produce exculpatory evidence, only evidence of guilt.'' So the two concepts are dissimilar. So that does not count. The gentlelady said the Constitution will protect us all. The Constitution protects you, but it will not pay your bills. That Constitution you carry in your pocket, the landlord will not take that and your lawyer will not take that. They want to get paid with cash. When the Government sues you and, by the way, you seem to have sympathy for everybody in this picture but the victim, who has been sued and the Government cannot substantially justify the lawsuit. I really wish you had some imagination and could imagine yourself getting arrested, getting indicted, what happens to your name, to your family, and the Government has a case it cannot substantially justify. They do not need to defend against malice or hardness of heart or anything like that, just substantial justification. They do not have to win. The fact that I picked this time and we have not had hearings, that is just a dodge. This is about as simple a concept as there is. We have had it and we have been satisfied with it in civil litigation. I am simply applying the same situation to criminal litigation.

Mr. HYDE. Mr. Chairman, I do not extend this protection to anybody who is successful in Federal court. They are successful and the Government cannot substantially justify. That is not a tough threshold, that is not a tough threshold under the Government to meet.

Mr. HYDE. Mr. Chairman, would the gentlewoman yield? I will give her some time if she yields on that point.

Mr. HYDE. Mr. Chairman, one of the reasons for being proud to be an American, one of the reasons I ran for Congress, one of the reasons I studied law was to try and achieve justice for people. Justice is what is your due. It is not being cheated, it is not being defrauded, and it is certainly not being pushed around. I have learned in a long life that people do get pushed around, and they can be pushed around by their government. I was very late coming to that decision, but I learned that people in government, exercising government power are human beings, like anybody else, and they are capable of error, they are capable of hubris, they are capable of overreaching, and yes, on very infrequent occasions they are capable of pushing people around. And so when something like that happens, it is doubly shocking because you have no place to turn. If the Government, your last resort, is your oppressor, you really have no place to turn. I am one who is hopeful and optimistic about the Government. I am very proud of my government. I think on the whole it tries very hard to do justice for its citizens. But occasionally it lapses, as I say, because it is made up of human beings. We have a law called the Equal Access to Justice Act, which provides in a civil case if the Government sues you, and you prevail, if the Government cannot prove substantial justification in bringing the suit, you are entitled to have attorney's fees and costs reimbursed. That is justice. I do not say the Government, when they bring a civil suit against anybody or everybody, has to always win to be justified in bringing the suit, but if the suit was not substantially justified, in other words, if it was an abuse of process, if it was frivolous, if it was malicious, then the victim, the defendant who has prevailed, is entitled to attorney's fees, very modest, $125 an hour. But that is the law, and it has been the law for 17 years. There are cases interpreting it, interpreting what substantial justification for the Government to bring the litigation is, and we have had 17 years of successful interpretation and reinforcement of that law. Now, it occurred to me, if that is good for a civil suit, why not for a criminal suit? What if Uncle Sam sues you, charges you with a criminal violation, even gets an indictment and proceeds, but they are wrong. They are not just wrong, they are willfully wrong, they are frivolously wrong. They keep information from you that the law says they must disclose. They hide information. They do not disclose exculpatory information to which you are entitled. They suborn perjury. They can do anything. But they lose the litigation, the criminal suit, and they cannot prove substantial justification. In that circumstance, as in the Equal Access to Justice Act for civil litigation, you should be entitled to your attorney's fees reimbursed and the costs of litigation, again at the same modest rate. That, my friends, is justice. If you were to take a piece of paper and sit down and say, what is the most unjust thing in all of the law, you would have to say when you are pursued by somebody, and you are ultimately vindicated, and you have to swallow what can be bankrupting costs. You mortgage your house, you mortgage your future, and you may have won the case, but you have really lost the war because you are bankrupt. So this simply says to Uncle Sam, look, if you are going to sue somebody, and civilly we have had that for 17 years, under my amendment criminally, and you cannot prove substantial justification after the case is over, and the verdict is not guilty, then the prosecution pays something toward the attorney's fees of the victim. That is justice. It may be rough justice, but it is substantial justice. That is what we are attempting to do. Now, in the bill, the gentleman from Pennsylvania [Mr. Murtha] having in mind the case of someone we all know who went through hell, if I may use the term, for many years of being accused and finally prevailed at enormous expense, one he will never get out from under, but that brought to mind these circumstances and what could we do about them. The gentleman from Pennsylvania [Mr. Murtha] decided to put in the bill an amendment that said for a Congressman or a member of the Congressman's staff, if they are sued by the Government criminally and they prevail, the Government owes them attorney's fees. I felt that was inappropriate. First of all, it is too narrow. It only covers Congressmen and congressional staff. If it is good enough for them, it ought to be good enough for any citizen. Second, it was too broad, because you only had to win your case to be entitled to attorney's fees. It would seem to me that is not enough. You need a higher threshold. What you need is to have a case that was not substantially justified, one that should not have been brought. That finding is made by the trial judge who has heard the case. The Government must prove substantial justification or you get attorney's fees. It seems to me this is just. The Justice Department does not like it, of course. Who would like having to prove substantial justification? But if you are interested in justice, if you are the defendant and you have this panoply of lawyers and resources and FBI against you, and not only are they wrong, but they have been substantially unjustified, they have been frivolous, there is no justification substantially for bringing the suit, I am not asking for damages, I am not asking that the prosecutor go to jail or be held in contempt of court, although were I the judge, I would be interested in hearing those arguments if the Government's case was not substantially justified, but we are asking that you repair the wound, the economic wound, somewhat by awarding attorney's fees. This is my amendment. Mr. Chairman, I reserve the balance of my time.