F. Sensenbrenner

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, in 1972, Justice Thurgood Marshall wrote the following in the case of United States v. Topco Associates, Inc.: ``Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. And the freedom guaranteed each and every business, no matter how small, is the freedom to compete, to assert with vigor, imagination, devotion, and ingenuity whatever economic muscle it can muster.'' Mr. Speaker, I rise in opposition to this legislation. The Wright amendment is anticompetitive, there is no doubt about it, and it has increased the cost of long-distance travel to people who live in the Dallas-Fort Worth area by as much as a third as compared to other markets with other airlines. What this legislation does is continue vestiges of the Wright amendment and its anticompetition policy on until at least the year 2025. If we think the Wright amendment is bad, we should get rid of it once and for all, and remember, Congress imposed the Wright amendment back over 15 years ago. Now, what this bill does is it codifies an agreement among private and local government parties that constitute per se violations of the antitrust laws. With limited exceptions, the Wright amendment expressly insulates Dallas-Fort Worth from interstate international air passenger competition from Dallas Love Field. Now, let us stop and think about this because this bill would provide a congressional approval, requiring the demolition of existing gates at Love Field, some of which are privately owned and utilized by airlines to offer additional air passenger service to points across the United States. The agreement also prohibits Southwest Airlines from offering service from the DFW Airport until 2025 and limits the ability of all airlines to offer service from Love Field and maintains a ban on most interstate flights from Love Field to 42 States. Now, that means if you live in the 42 States that this bill seeks to protect, you are going to pay more to come to Dallas-Ft. Worth, no two ways about it. There was a memo leaked out of the Justice Department that says that this agreement, which allows Southwest to stay out of DFW for 19 years, would be a hard core per se violation of the Sherman Act. Now, proponents of this bill will claim that the antitrust laws are unaffected by it and do not be fooled. Why? According to 54 American Jurisprudence 2nd, Monopolies and Restraints of Trade, No. 243, the Hornbook on antitrust law, says: ``In determining whether subsequent Federal legislation has granted immunity from the antitrust laws, a court should reconcile the operation of both statutory schemes, where this is possible.'' A court looking to this legislation will be forced to ignore the antitrust laws because the legislation contains mandatory obligations that the parties engage in contact that violates the per se violations of the antitrust laws. So this compromise is a compromise in name only, and the result is exactly the same, creating implied antitrust immunity by eliminating a cause of action for conduct that presents a clear violation of the antitrust laws. Now, we are going to hear that the Wright amendment is a local issue, and they are right. It is a local issue for the Members of Congress who represent the 42 States whose residents are held captive by the anticompetitive output restriction/cartel that this legislation perpetuates. We have got to have the courage to stand up for consumers, our constituents who vote for us, and adopt the pro-competitive goals of the Airline Deregulation Act by defeating this legislation. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers).

Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of time. Mr. Speaker, some nights when I drive out of here and go home, I follow some of my Texas friends out of the garage that have a big bumper sticker that says: ``Don't Mess With Texas.'' Tonight is one of the nights where I think we ought to mess with Texas, because what is being proposed here is going to increase the fares of anybody who goes to Texas or decides to go out of the Dallas-Fort Worth area by a significant amount, because it protects monopoly status until 2025. This is the most anticonsumer, antifree enterprise legislation that has come before this House in a long time. At Dallas-Fort Worth, approximately 85 percent of all passengers board an American or American Air regional carrier flight. This keeps American's near monopoly at DFW. And at Love Field, Southwest has a 95 percent market share. Now, without the Wright amendment, both of those market shares are monopolistic. And despite what you hear about how this does away with the Wright amendment, it keeps these monopolies in place until the year 2025. There has been a lawsuit that has been filed against Love Field by people who are standing up for consumers. This legislation extinguishes that lawsuit. The people who filed their lawsuit won't have a day in court to be able to get a fair determination by the judge, because what it does is it provides a backdoor antitrust exemption. Now, we have to ask ourselves as elected representatives of the people whether we are going to allow a private group of local officials and business people in any community to come to Congress to get themselves exempted effectively from an antitrust law. What this bill does is it effectively delegates that power on this issue to the people who came to Congress, and they asked us to ratify this agreement. We shouldn't be delegating antitrust immunity to anybody. That should be determined by the court. So if you believe in the operation of the law and letting people have their day in court, this bill ought to be voted down, particularly if you represent the 42 States that aren't covered by the Wright amendment. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield 30 seconds to the gentleman from Michigan (Mr. Conyers).

Mr. SENSENBRENNER. Mr. Speaker, I yield 30 seconds to the gentleman from Michigan (Mr. Conyers).

Mr. SENSENBRENNER. Mr. Speaker, the big-hearted gentleman from Wisconsin yields an additional 1 minute to my friend from Texas.

Mr. SENSENBRENNER. Mr. Speaker, is the gentlewoman from Texas opposed to the motion? If not, I demand the time in opposition.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time

Mr. SENSENBRENNER. Mr. Speaker, the gentleman from California, Mr. Lungren, was so moved by the last speech that I yield him 2 minutes.

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of S. 3930, the Military Commissions Act of 2006, which is identical to legislation this House passed in a bipartisan manner on Wednesday evening by a vote 253-168. The other body voted 65-34 to approve this bill last night. Let me say that the only reason we are here today is because the other body has committed a flagrant act of legislative plagiarism, once again. The House passed its version of the bill first. They would not take up a bill with an ``H.R.'' number but instead picked up the work product that this House did, put an ``S.'' number on it, and thus required us to have an hour debate on this issue for a second time. I regret that, and I think all of the arguments that were made on Wednesday when we fully and thoroughly debated this bill are just as valid today as they were 2 days ago. Because there is not one word changed in the legislation between the time it passed the House and the time the Senate reintroduced it with an ``S.'' number and put us through an hour debate on the rule and an hour debate on the same bill, in my opinion unnecessarily. Having said that, on the merits of the bill, the way we treat terrorist enemy combatants sends a strong signal to the rest of the world about our commitment to the rule of law. This legislation says we will not subject enemy combatants in our custody to the cruel and brutal treatment they regularly utilize against our soldiers and civilians. At the same time, this bill makes it clear to the terrorists and their lawyers in America that America will not allow them to subvert our judicial process nor to disrupt the war on terror with unnecessary or frivolous lawsuits. The bill strikes the right balance. It establishes a mechanism that is full and fair but also is orderly and efficient. Indeed, the bill provides some 26 new rights to terrorist detainees, far more rights than any other system employed in history to try suspected war criminals. Those who have suggested that this legislation will be found unconstitutional are misguided. In this legislation, we accomplish precisely what a majority of the Supreme Court, and particularly Justice Breyer, invited us to do in the Hamdan case: construct a full set of rules for conducting military commissions that meet the fundamental test of fairness under our Constitution. On habeas corpus, let me again restate Congress' understanding of the law, because it is against this backdrop that we pass this legislation today. The Supreme Court has never held that the Constitution's protections, including habeas corpus, extend to noncitizens held outside the United States. To repeat, the Supreme Court has never held that the habeas corpus protections contained in the Constitution apply to noncitizens held outside the United States. In fact, the Supreme Court rejected such an argument in the 1950 case of Johnson v. Eisentrager. That portion of Eisentrager is still good law. Moreover, in the 1990 Verdugo case, the court reiterated that aliens detained in the United States but with no substantial connection to our country cannot avail themselves of the Constitution's protections. If the Supreme Court follows its own precedents and takes seriously its invitation to Congress to legislate in this area, the Court should have no problem concluding that this bill passes constitutional muster. As we consider this legislation, it is important to remember, first and foremost, that this bill is about prosecuting the most dangerous terrorist that America has ever confronted, individuals like Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, or Ahbd Nashiri, who planned the attack on the USS Cole. None of their victims was treated with the same kind of respect for human life and the rule of law that is embodied in this legislation. I urge my colleagues to support this legislation, and let me reiterate for my colleagues the 26 rights for terrorist detainees that are created by this legislation. They include: The right to be informed of the charges against them as soon as practicable; The right to service of charges sufficiently in advance of trial to prepare a defense; The right to reasonable continuances; The right to preemptory challenge against members of the commission and challenges for cause against members of the commission and the military judge; Witness must testify under oath, and judges, counsels and members of the military commission must take an oath. There is a right to enter a plea of not guilty. There is a right to obtain witnesses in other evidence. There is a right to exculpatory evidence as soon as possible. There is a right to be present in court with the exception of certain classified evidence involving national security, preservation of safety or preventing disruption of proceedings; The right to a public trial except for national security issues or physical safety issues; The right to have any findings or sentences announced as soon as determined; The right against compulsory self-incrimination; The right against double jeopardy; The defense of lack of mental responsibility; Voting by members of the military commission by secret written ballot; Prohibition against unlawful command influence toward members of the commission, counsel or military judges; Two-thirds vote of members required for conviction and three-quarters vote required for sentence of life or over 10 years, and unanimous verdict required for the death penalty; Verbatim authenticated record of trial; Cruel or unusual punishments are prohibited; Treatment and discipline during confinement the same as afforded to prisoners in U.S. domestic courts; The right to review the full factual record by the convening authority; and The right to at least two appeals, including to a Federal Article III appellate court. I submit, Mr. Speaker, that none of the people who have been beheaded by terrorists had any of those rights. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1054, I call up the Senate bill (S. 3930) to authorize trial by military commission for violations of the law of war, and for other purposes, and ask for its immediate consideration.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, 16 years ago, a bipartisan Congress took significant steps to break down the physical and societal barriers that for far too long kept disabled Americans from fully participating in all aspects of American life. Prior to the Americans with Disabilities Act of 1990, commonly known as the ADA, disabled Americans were subjected to false stereotypes, experienced discrimination in almost all aspects of society, and were relegated to a form of second class citizenship. The ADA changed this by restoring the full meaning of equal protection under the law and all the promises that our Nation has to offer. Through the ADA and its broad protections from discrimination in employment, State and local government programs and services, places of public accommodation and services provided by private entities, transportation, and telecommunication services, disabled citizens have experienced increased opportunities, higher graduation rates, higher employment rates and lower rates of poverty. Because of this landmark civil rights law, disabled American citizens no longer live in isolation but live as independent, self sufficient members of our communities. However, beginning in 1999, through a trilogy of cases beginning with Sutton v. United Airlines, Inc., the Supreme Court has slowly chipped away at the broad protections of the ADA and has created a new set of barriers for disabled Americans. An oversight hearing held by the House Judiciary Subcommittee on the Constitution revealed that certain decisions of the Supreme Court have actually worked to exclude millions of disabled Americans from the ADA's protections, the very citizens that Congress expressly sought to include within the scope of the Act in 1990. The impact of these decisions is such that disabled Americans can be discriminated against by their employers because of their conditions, but they are not considered disabled enough by our Federal courts to invoke the protections of the ADA. This is unacceptable. The bipartisan legislation that I am introducing today will enable disabled Americans utilizing the ADA to focus on the discrimination that they have experienced rather than having to first prove that they fall within the scope of the ADA's protection. With this bill, the ADA's ``clear and comprehensive national mandate for the elimination of discrimination on the basis of disability'' will be properly restored and the ADA can rightfully reclaim its place among our Nation's civil rights laws.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1054, I call up the bill (H.R. 4772) to simplify and expedite access to the Federal courts for injured parties whose rights and privileges under the United States Constitution have been deprived by final actions of Federal agencies or other government officials or entities acting under color of State law, and for other purposes, and ask for its immediate consideration.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, today I introduce the ``Sentencing Fairness and Equity Restoration Act of 2006,'' to restore uniformity to Federal sentencing and reaffirm Congress' commitment to protecting our Nation's children. This legislation addresses the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which invalidated the mandatory sentencing requirement of the Sentencing Guidelines (18 U.S.C. section 3553(b)(1)), and struck down the de novo standard for appellate review of any downward departures in 18 U.S.C. Section 3742(e), which was enacted as part of the PROTECT Act in 2003. On March 13, 2006, the U.S. Sentencing Commission issued its report on Booker's impact on Federal sentencing. The Sentencing Commission's report shows that unrestrained judicial discretion has undermined the very purposes of the Sentencing Reform Act, and jeopardizes the basic precept of our Federal court system that all defendants should be treated equally under the law. The Federal Sentencing Guidelines are now advisory in all cases, even in those where they can be applied without any judicial fact-finding. Federal judges are now able to impose sentences outside the prescribed ranges, thereby undermining the very purpose of the Sentencing Reform Act to ``provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.'' The PROTECT Act ensured that appropriate sentences would be administered to sex offenders, pedophiles, child pornographers, and those who prey on our children. Thus, I am troubled that the Commission's Report shows that these fundamental sentencing reforms have been effectively eliminated. That is neither good nor acceptable for justice and public safety. Most alarming is the dramatic increase in departure rates for sex offenses including sexual abuse of a minor, sexual exploitation of a minor, and possession or trafficking in child pornography. Downward departures increased for these offenses to levels that had not existed since enactment of the PROTECT Act in 2003. The Sentencing Commission's report shows that in the last year there has been a six-fold increase in below guideline range sentences for defendants convicted of sexual abuse of a minor, a five-fold increase in below guideline range sentences for defendants convicted of sexual exploitation of a child, a 50 percent increase in below guideline range sentences for defendants convicted of sexual contact of a minor, trafficking in child pornography, and possession of child pornography. The report also shows an increase in overall departure rates for nearly all Federal offenses across all Federal jurisdictions, including drug trafficking offenses, firearms offenses, theft and fraud offenses, and immigration offenses. These four offense types comprise 75 percent of all Federal cases annually. According to current sentencing data, the rate of downward departures has not improved. Shortly after the release of the Booker report, I expressed my concern for the increase in departures rates, particularly for sexual offenses, and promised a legislative response. The Sentencing Fairness and Equity Restoration Act directs the courts to impose a sentence at the minimum of the guideline range up to the statutory maximum and reinstates de novo review for all downward departures. The act also requires the Attorney General to create and implement a new policy for the filing of motions for departure for substantial assistance and report this policy to Congress within 180 days of enactment of the bill. Mr. Speaker, I am introducing this legislation to restore equity in Federal sentencing and to ensure that tough sentences are handed out to all defendants, including sex offenders. The Sentencing Fairness and Equity Restoration Act of 2006

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I rise in support of H.R. 5418 to establish a pilot program in certain U.S. district courts to encourage enhancements of expertise in patent cases among district judges. It is widely recognized that patent litigation has become too expensive, too time consuming, and too unpredictable. This addresses those concerns by authorizing a pilot program to improve the expertise of Federal district judges responsible for hearing patent cases. The need for such a program is apparent. Patent cases account for nearly 10 percent of complex cases and consume significant judicial resources. Despite the investment of the additional resources by district judges to these cases, the rate of reversal on claim construction issues remains excessive. One sitting Federal judge characterized the manner that the judiciary employs to resolve these cases as marked by ``institutional ineptitude.'' I would say, parenthetically, that that is a remarkable admission by a Federal judge. The premise underlying H.R. 5418 can be stated in three words: practice makes perfect. Judges who are able to focus more attention on patent cases are more likely to avoid error and thus reduce the likelihood of reversal. The bill requires the director of the Administrative Office of the Courts to select five district courts to participate in a 10-year pilot program to enhance judicial patent expertise. The bill specifies criteria that the director must employ in determining eligible districts and then preserves the continued random assignment of cases to prevent the pilot districts from becoming magnets for forum-shopping litigants. Finally, the legislation will require the director to provide both the House and Senate Judiciary Committees with periodic reports to help assess the program's efficiency and effectiveness. Mr. Speaker, the bill does not purport to comprehensively address all of the ill associated with patent litigation, nor does it seek to substantively amend the patient laws or the judicial process. However, the program established by this bill will enhance judicial expertise in this crucial area while providing Congress important information to further improve the administration of patent claims. Mr. Speaker, I commend the two gentlemen from California, Mr. Schiff and Mr. Issa, for introducing this bill. I urge Members to support this important legislation. Mr. Speaker, I reserve the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.

Mr. SENSENBRENNER. Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 5418) to establish a pilot program in certain United States district courts to encourage enhancement of expertise in patent cases among district judges, as amended.

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 5418, currently under consideration.

Mr. SENSENBRENNER

Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.R. 5825, currently under consideration.

Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman from California (Mr. Daniel E. Lungren).

Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman from Arizona (Mr. Flake).

Mr. SENSENBRENNER. Mr. Speaker, I yield 3\1/2\ minutes to the gentlewoman from Connecticut (Mrs. Johnson). (Mrs. JOHNSON of Connecticut asked and was given permission to revise and extend her remarks.)

Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman from Arizona (Mr. Franks).

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1052, I call up the bill (H.R. 5825) to update the Foreign Intelligence Surveillance Act of 1978, and ask for its immediate consideration.