Jerrold Nadler

Mr. NADLER

Mr. NADLER. Mr. Chairman, I yield the balance of my time to the distinguished gentleman from New York (Mr. Weiner).

Mr. NADLER. Mr. Chairman, I yield 2\1/2\ minutes to the gentlewoman from California (Ms. Lofgren).

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, on this side of the aisle we do not oppose the amendment. Mr. Chairman, I yield 1 minute to the gentleman from Virginia (Mr. Scott).

Mr. NADLER. Mr. Chairman, I ask unanimous consent to control the time in opposition, though I do not oppose the amendment.

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time. Mr. Chairman, 1,800 years ago, Christians were persecuted because they would not worship the Roman emperor as a god; 450 years ago St. Thomas Moore lost his head because he would not swear an oath that king and parliament commanded that violated his Catholic belief. But the United States is different. Our Constitution prohibits test oaths. Our Constitution protects the rights of Jehovah's Witnesses' children to refuse to recite a pledge that we hold dear but that violates the tenets of their faith. Or at least the United States was different. This bill would leave to the States, as the gentleman from Wisconsin (Mr. Sensenbrenner) says, the decision whether that religious liberty would be protected or not. The issue, Mr. Chairman, in this bill is not the Pledge of Allegiance. The issue in this bill is whether we strip the courts of the power to protect our liberties against perhaps transient majorities and legislative bodies. The issue is whether we eliminate the only final protection of our liberties, of our religious and other liberties, that we have evolved. If we pass this bill and go in this direction, the United States will be a very different and a much, much less free country. I urge the defeat of this bill. Mr. Chairman, I yield back the balance of my time.

Mr. NADLER. Mr. Chairman, I yield 1 minute to the distinguished gentleman from Washington (Mr. Inslee). (Mr. INSLEE asked and was given permission to revise and extend his remarks.)

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. The reference to Senator Daschle was not true. We rebutted it in the debate last time. I will reference something for the Record so we do not waste time on this untruth anymore now. Brush Clearing Rider: Most notably, the Majority claims that a rider to the 2002 Supplemental Appropriations Act authored by the senior senator from South Dakota approving logging and clearance measures by the Forest Service in the Black Hills of South Dakota serves as a precedent for the enactment of these types of court-stripping measures. The problem with this argument is that, while the rider restricted ``judicial review'' of ``any [logging or clearance] action'' by the Forest Service, it did not restrict federal judicial review of the rider itself or its constitutionality. Indeed, the federal courts did review the validity of the rider, and explicitly found that the ``challenged legislation's jurisdictional bar did not apply to preclude Court of Appeals' review as to the legislation's validity'' Mr Chairman, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Waters).

Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson-Lee). (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. NADLER. Mr. Chairman, I yield for the purpose of a making a unanimous consent request to the gentleman from Texas (Mr. Green). (Mr. GREEN of Texas asked and was given permission to revise and extend his remarks.)

Mr. NADLER. Mr. Chairman, I yield 2 minutes to the gentleman from Maryland (Mr. Hoyer), the Democratic whip of the House.

Mr. NADLER. Mr. Chairman, I yield 3 minutes to the gentleman from Michigan (Mr. Conyers), the very distinguished ranking member of the Committee on the Judiciary. (Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. NADLER. Mr. Chairman, I yield 5 minutes to the gentleman from Virginia (Mr. Scott).

Mr. NADLER. Mr. Chairman, I yield 2 minutes to the distinguished gentleman from Massachusetts (Mr. Frank). Mr. FRANK OF Massachusetts. Mr. Chairman, even by the standards that have sadly governed this House recently, the bill before us is bizarre. It makes a big hole in the Constitution for the first time in American history, if it were to pass and become law, to counteract a decision which has already been overruled. We should be very clear. There is no pending case even at the Federal level that deals with this. But what I have heard people say is, well, do not worry, because there is an individual liberty here. The Supreme Court of the United States, after all, did say in 1943 in the Barnette case that no child could be forced to say the Pledge of Allegiance if it violated his own family's religious views. The Jehovah's Witnesses said saying the Pledge of Allegiance violated their views. The Supreme Court said they did not have to say it. I have heard people say, well, do not worry because children will be protected if they find this objectionable by the Supreme Court decision. Now the bizarre aspect is that this is a bill that would prevent a Supreme Court decision, the very thing on which they are relying to justify it, but it is also the case that under this bill, if a State court should decide to disregard that Supreme Court opinion and say that saying the pledge was mandatory, even for Jehovah's Witnesses or others who might have a principled religious objection to it, that that could be overruled. The other thing that ought to be noted is this. Once my colleagues start down this road, this is the second time the majority has done this, telling us that the Supreme Court cannot decide, they are going to create a precedent, if this ever succeeds, that will be followed in other issues. The business community ought to follow this very closely because it will now become demanded of Members of Congress that when they pass a law they show that they really mean it by taking away Supreme Court jurisdiction. So the important desire of the business community for Federal uniformity, all of the efforts they have been making recently to try and get national laws that govern commercial transactions, will be at risk; and we will see laws in area after area, if this precedent is followed, which will mean that there is no uniform national interpretation of them.

Mr. NADLER. Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from North Carolina (Mr. Watt).

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, this is not simply about the Pledge of Allegiance. I really hate to be an I-told-you-so, but the last time we considered legislation to strip the Federal courts of jurisdiction, in that case, to hear cases challenging the Defense of Marriage Act, I warned there would be no end to it. Our former colleague, Bob Barr, whose legislation Congress was purporting to protect on that occasion said, no thanks. He wrote, ``This bill will needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. During my time in Congress I saw many bills introduced that would violate the Takings Clause, the second amendment, the tenth amendment and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others followed the path set by H.R. 3313.'' Bob Barr was right. And it would make the Constitution like the Soviet Constitution which had plenty of guarantee of rights, but they were not worth the paper they were written on because there was no independent court system to enforce them. Today it is the turn of the religious minorities. Once upon a time a student could be expelled from school for refusing to recite the Pledge of Allegiance. In 1943 in the middle of World War II, the Supreme Court in the Barnette case held that the children had a first amendment right not to be compelled to swear an oath against their beliefs. Justice Jackson wrote, ``If there is any fixed star in our constitutional constellation, is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act, their faith therein.'' This obviously includes a pledge of faith in God. The Jehovah Witnesses in the Barnette case felt that it was idolatry to be forced to pledge that even they believe in God. This legislation would of course strip those families of the right to go to court to defend their religious liberty. Schools could once again expel children for acting according to the dictates of their religious faith, and Congress will have slammed the courthouse door in their faces. This bill is part of a more general attack on our system of government. You learned about this in school. We have an independent judiciary whose job it is to interpret the Constitution, even if their decisions are really unpopular. And what this bill does, what these bills do is to slam the courthouse door in the face of people who believe that their Constitutional rights are violated so they cannot go to court because we tell them they cannot. As unfortunate as I find the current Supreme Court on so many issues, I understand that we cannot maintain our system of government, we cannot enforce our Bill of Rights if the independent judiciary cannot enforce those rights even if the majority does not like it. As to the complaints about unelected judges, remember your high school civics. We have an independent judiciary precisely to rule against the wishes of a trenchant majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one. As Alexander Hamilton said in Federalist 78, ``The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.'' And here we are saying that when someone believes that an Act of Congress violates their rights, they may not go to court to try to see if those rights are supreme if the legislation is unconstitutional. We are playing with fire here. We are playing with the national unity of this country. The gentleman from Wisconsin (Mr. Sensenbrenner) says the 50 State courts would reserve to themselves the right to declare Federal law unconstitutional. So what would be constitutional in one State would be unconstitutional in another. We would be back to the Articles of Confederation. We would be undoing 200 years of American history because we would have 50 different interpretations of the Constitution and of our State laws. The gentleman from Wisconsin (Mr. Sensenbrenner) says that the Judiciary Act of 1789 restricted the jurisdiction of the courts. That is true. But he fails to note that the Judiciary Act of 1789 predates the Bill of Rights, the first ten amendments to the Constitution. The fifth amendment says that no person may be deprived of life, liberty or property without due process of law. All claims, all claims essentially come down to a claim that someone is being deprived of life or liberty or property without due process of law; and if you cannot go to a court to adjudicate that claim by definition, you are being denied due process of law. So this is clearly unconstitutional. I ask my colleagues, is demagoging a case that they have won in court so far really worth destroying the enforceability of the Bill of Rights? I urge my conservative colleagues to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities even if the majority hates that minority. Feel free to hate if my colleagues must, but please leave our Constitution, leave our liberties, leave our civil liberties that define this Nation and makes it what it is, leave it alone. Mr. Chairman, I reserve the balance of my time.

Mr. NADLER

Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding me this time, and I rise in support of this concurrent resolution. New York is eminently suited to host the Olympic Games, and I certainly urge the International Olympic Committee to select New York as the site for the 2012 Games. I want to say, however, that support for this resolution should not be construed as support for the construction of the Olympic stadium planned for the West Side of Manhattan. There is much opposition to that stadium. Many of us think it is in the wrong place. We support the Olympics, because we trust that common sense will reign and that eventually people will realize that the Olympic stadium should be in Queens or in Shea Stadium. In any event, we support the Olympics, we support this concurrent resolution, but that support should not be construed as support for construction of a new stadium for the Olympics or for the Jets on the West Side of Manhattan.

Mr. NADLER

Mr. NADLER. Mr. Chairman, I thank the gentleman for yielding me time. Mr. Chairman, the gentleman from Michigan (Mr. Smith) a few moments ago said that the Social Security system would go insolvent in 2018. This is simply wrong. In 2018, the Social Security system will have to begin to pay benefits from the interest accumulated on the trust fund. Sometime in the later 2020s, the Social Security system will have to begin to dip into the principal of the trust fund. That will not be exhausted until at least 2042, according to the trustees, and according to the Congressional Research Service, 2050. There is no Social Security problem until at least 2042 or 2050. Now, we are told that we have to start paying back the bonds. Social Security lent the money to the General Treasury; that is true, it did. That is how you invest money. You invest in U.S. bonds. That is not a problem with the Social Security system. It may be a problem for the budget, but the fact is the system is solvent. Those are legal due-and- owing obligations, exactly as legally binding as a U.S. savings bonds is to pay to my colleagues or me if we own a savings bond. In 1983, Chairman Greenspan chaired a commission which recommended increasing Social Security taxes, which we did in 1986, to precisely generate the surplus which we will start dipping into when the baby boomers start retiring, and that is a surplus which we will start dipping into in 2018. To say that produces a crisis is to say that we lied to an entire generation of people when we increased the taxes in order to produce that surplus to dip into later. We will dip into that. Mr. Greenspan, of course, says it was fine to reduce taxes on the rich; and because we did that, we have a budget deficit. We cannot repay the bonds; and therefore we should reduce benefits starting in 2018. That is simply thievery.

Mr. NADLER

Mr. NADLER. Reclaiming my time, Mr. Speaker, I understand that that is the case. I also understand that that is part of the problem. We are engaged in a very serious war with the Islamic terrorists. We may have to ally ourselves, and I am not going to criticize the President on this point, we may have to ally ourselves, as we did in the Cold War, sometimes justifiably, sometimes not, with not-too-presentable allies against the people who really threaten us. Winston Churchill, the great anti-Communist Winston Churchill, was a great anti-Communist for many years; and he also, of course, warned the world, and the British in particular, against the Nazis. And he went to war against the Nazis. Britain finally went to war against Germany. When Germany invaded Poland in 1939, Churchill became Prime Minister in 1940, and he rallied the British and rallied the Free World against the Nazis. And when the Nazis invaded the Soviet Union, who had been their allies and who Churchill hated, Churchill was asked, and he offered all aid to Stalin, who was another thug, Churchill was asked how can you say something nice about Stalin? Churchill said, I expect that if Hitler invaded hell I should find something nice to say about the Devil. So I am not going to criticize.

Mr. NADLER. That is correct. It was President Bush, Vice President Cheney and the Republican leadership in both Houses of Congress who steadfastly opposed the creation of that Commission and eventually bowed to pressure coming from Democratic leaders in Congress and Democrats in Congress, from the families of the victims, from the press and from the American people at large, and eventually they bowed to that pressure and they flipped-flopped, and they reluctantly allowed the Commission to be created.

Mr. NADLER. Well, that is correct. Again, they sought to delay it. They sought to oppose it. They sought to appoint Henry Kissinger to chair it. That did not fly when the public screamed at that because Mr. Kissinger was hardly an objective leader, as Governor Kean and former Congressman Hamilton have proven to be. And even after the Commission issued its recommendations, the President said he was going to file the recommendations and appoint an intelligence czar, but he also said that that intelligence czar would have no real power. But yesterday he flip- flopped on that and finally bowed to the pressure of the Commission, and the American people, and the families of the victims, and the Democrats who have been pushing to implement the recommendations of the Commission and give the intelligence director that would be created by this recommendation real power. The President flip-flopped on that yesterday and came to the right decision finally yesterday.

Mr. NADLER. He was the Chairman.

Mr. NADLER. Yes. This was a bipartisan Commission that was appointed by the President after the President and the Vice President and the Republican leadership in Congress continued to oppose its creation but eventually flip-flopped. Now, in fact, the House Republicans bowed to White House pressure in resisting creation of this Commission, and I quote the gentleman from Florida (Mr. Goss), who is now the President's nominee for Director of the CIA ironically. He stated, and he was quite honest, in the Baltimore Sun on June 14, 2002, I am very much aware that we have a good working relationship with the White House. Access to information is working well, he said, and I do not want anything to interfere with that. The White House is not interested in this Commission; hence, I am not for bringing the subject up. Then they bowed to pressure; they supported it. Finally in late 2002, after opposing it for a year, President Bush flip-flopped and finally agreed to support an independent investigation into the 9/11 attacks after the congressional committees that were looking into this unearthed more and more examples of intelligence lapses. But then, having been forced to accept the creation of the Commission, a bipartisan Commission, five members of either party headed by former Governor Kean, a Republican, and former ranking member Hamilton, a Democrat, they tried to stop the Commission's work. The Bush administration and Speaker Hastert fought to close down the Commission prematurely, after delaying, after refusing to give them information so they could get their work started. Remember that, when the 9/11 Commission because of these delays needed to seek an extension of this deadline to complete the investigations from May, all the way to July, a 2-month extension, and I am quoting the New York Times of January 28 of this year, White House and Republican congressional leaders have said they see no need to extend the congressionally-mandated deadline now set for May 27, and a spokesman for Speaker Hastert said Tuesday that Mr. Hastert would oppose any legislation to grant the extension. Then, in early February of this year, the White House again flip- flopped and reversed course in support of an extension of the investigation into government failings surrounding the September 11 terrorist attacks. The Bush administration had opposed expanding the charter of the bipartisan 9/11 Commission beyond the May 27 expiration date, but bowed to demands from victims' families and Democrats and to the panel's request for more time. Speaker Hastert was reluctant to support this extension, but he also flip-flopped. He bowed to pressure and agreed to support an extension in late February. Then, when the Commission finally came in with its report in July, a few weeks ago, the Republicans in Congress sought to delay the review of the 9/11 Commission recommendations until after recess, until after, so that they would not have anything ready to go before Congress until after the November 2 elections.

Mr. NADLER. No, no, you are quite correct, and as I am going to show in recounting the history here in a few minutes, the gentleman from Texas (Mr. DeLay), bowing to Democratic pressure and to common sense, flip-flopped and did change his mind and is, or at least he says he is, supporting legislation. We still wait to see the legislation to implement the Commission's report, after the administration first did not want to do that.

Mr. NADLER. Yes, indeed. The Chairman, Governor Kean, and the vice chairman, former ranking member Hamilton, stressed that we are in a war; we are in a very serious war with terrorists, and speed is of the essence, and we should do this now. We should consider these recommendations now and enact them expeditiously and not wait till next year or until after the November elections.

Mr. NADLER. Mr. Speaker, 3 years after 9/11, the number of terrorist incidents is going up. The number of recruits for these terrorist groups are increasing far faster than we can kill or decapitate them. They have morphed and decentralized so even if we capture the people around bin Laden, or even bin Laden, it will not matter as much as if we had done it 2.5 years ago because new leaders have arisen. To finish, and this is the Director of the Carnegie Endowment for International Peace talking about securing all of the nuclear materials in the next 4 years, ``What we should be doing is implementing a very aggressive program to go out and secure and eliminate all potential source of nuclear weapons and materials that terrorists might obtain, whether in the former Soviet Union, Afghanistan, Iran, or more than 40 countries that run research reactors.'' Would this be expensive? Yes. But we could do it annually for the price of 1 month of operations in Iraq, 3- to $4 billion a year for 4 years would do the trick, and yet President Bush has tried to cut this funding repeatedly. What I find baffling is why the White House has insisted on attacking the most peripheral elements of the WMD threat, like Iraq, while ignoring, largely ignoring, the central threat, nuclear proliferation. The upshot, and this is a quote from a column in the New York Times by Nicholas Kristof a month ago, in fact a month ago and 2 days, ``The upshot is that the risk that a nuclear explosion will devastate an American city is greater now than it was during the Cold War, and it is growing.'' So the first thing we should be doing is spending our money, the money that we are now wasting on a tax cut for the rich, the money that we are wasting on the quagmire in Iraq. A far more important use of it is to control the production cycle for nuclear materials. That is how you shut off the risk of nuclear explosions. The second thing, this administration inspects only 2 percent of the 6 million shipping containers that come into this country every year, any one of which could hide a chemical, biological, or nuclear weapon inside it. I had an amendment on the floor of this House a year ago to insist that we inspect every container. When I say inspect every container, I do not mean that someone has to go through it by hand. That has to be done in some cases, but in most cases you set up a machine that operates through neutrons or neumasons, which is probably a better technology. It costs a couple of million dollars for the machine, and you set it up in Singapore or Hong Kong, and it is like a car wash. You take the container on a truck or train chassis through it, and it tells you what is in it. It tells you the elements. It is spectroscopic. If you see uranium in it or plutonium, then maybe you look through it. And if you see a lot of nitrogen where it should not be, then you say maybe there are explosives in there and you look through it. You could do this again for a couple of billion dollars a year, inspect every container before it gets put on a ship in a foreign port bound for the United States. When I brought this up on the floor of the House, the distinguished chairman of the appropriations subcommittee said, No, we don't need to do that. We will inspect the high-risk containers. I said, Mr. Chairman, the terrorists know that. They'll put the bombs in the low- risk containers. If you read the book ``America the Vulnerable'' by Steve Flynn who served under Presidents Bush and Clinton and Reagan, you see exactly how a very innocent container with innocent stuff in it from perfectly legitimate, reputable firms can have a bomb or a biological weapon or a radiological bomb, a dirty bomb placed in it in various ways while it is in transit. We must inspect these. You can then, after inspecting them, put certain electronic things on it that communicates with a GPS satellite and tells you if it has been tampered with or opened or moved on board this ship before it comes into port here. Then you can hold that ship outside American territorial waters. Why we are not doing that is again beyond me. The Bush administration, if there is a nuclear attack in this country, if there is a radiological bomb, a dirty bomb in this country and if it comes in by container, will have a lot to explain. And another question. Why are we spending $100 billion on an antiballistic missile system? We are told, assuming it worked, which it does not yet, but eventually it will, we are told that the ABM is necessary in case some rogue state, North Korea, Iran, whoever, should get three or four atomic bombs and wished to attack the United States. But a rogue state that got three or four atomic bombs and wished to attack the United States would not put the atomic bomb on a missile. Aside from the fact that it is harder to design an atomic bomb to put on a missile than in a shipping container, a missile has a return address. If, God forbid, a nuclear explosion occurred in an American city or cities, our radar would tell us where that missile came from and that regime would know, that dictator would know that if they did that, they would cease to exist, their country would cease to exist and they would cease to exist half an hour later. It is called deterrence. It works against nation states who are rational. What they would do would be to take that bomb, put it in a shipping container, ship comes into the United States, New York or Los Angeles or wherever, explodes and we do not know who to retaliate against. That is the real danger. That is how the danger will occur to this country and that we are doing virtually nothing against, certainly not spending $100 billion.