After the House Judiciary Committee worked for days shortly after September 11, 2001 to hammer out a bill that both parties’ representatives unanimously agreed to, Conyers recalled with obvious irritation, the House Rules committee managed to hack it up so much behind closed doors that by the time the full House voted on it the next day, it was unrecognizable.

“Then Chairman Dreier” — referring to Rep. David Dreier (R-Calif.), then chairman of the House Rules Committee — “under lord knows whose instructions, substituted that bill for another bill, that we at Judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring.” Conyers proceeded to say that many of the problems being discussed at the hearing with the current law would have been addressed by the original bipartisan one, such as offering an opportunity for people harmed by the Patriot Act’s abuses to seek redress. The original law also “may have eliminated, or simplified, litigation about Patriot Act abuses that continue today,” said Conyers.

Rep. Jerrold Nadler (D-N.Y.), who chaired today’s hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, backed up Conyers’ version of what happened.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act. Then the bill just disappeared. And we had a new several-hundred-page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

None of the Republicans at today’s hearing challenged the Democratic chairmen’s version of events.

Asked whether states should use the 10th Amendment to prevent health care reform from taking effect, he replied that an assertion of states’ rights was “probably the only way we’re going to stop this reckless spending.” He continued, “There’s no constitutional authority for the government to actually do [the reform proposed by Democrats], but whether the courts take it up is a different matter.”

The rules change, however, when it comes to Medicare.

DeMint expressed doubts as to the legality of Medicare under the Constitution, but said, “Regardless of constitutionality, it is a promise that we have to keep. … I think Medicare and Social Security have to be protected.”

When asked if there was any chance that health reform legislation drafted by the Democratic Congress could win his support and that of his fellow conservatives, he replied, “No, because they’re not willing to talk about anything but bigger government.” The role of Republicans in the debate, he said, is to kill the current iteration of reform and start over.

“If we stop [Obama] here, we can get to real reform,” he said. “If he gets this through, he’ll go to cap-and-tax and all sorts of other things.”

He opened his speech to the Tea Party protesters by saying, “Ladies and gentlemen, welcome to Waterloo.” It’s not the first time that he’s referred to the health reform debate as the battle that will lead to the Obama administration’s demise. This time, however, he also pulled Republicans into the mix.

“I think you’re going to see some Republicans primaries who have been big spenders,” he said in the phone interview.

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The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The question from the caller: “I want to know if any of the governors are willing to invoke the 10th Amendment if the health care bill is passed.” Pawlenty’s answer, below the fold:

Thank you for the question. It’s a great question. I don’t think the nation’s had a proper federalism debate since Ronald Reagan raised the issue regularly in the 1980s. And by federalism of course we mean the proper relationship between the federal government and the states, trained as a cornerstone around the 10th Amendment. I believe that amendment has been discounted to the point of making me very sad.

Depending on what the federal government comes out with here, asserting the 10th Amendment might be viable option, but we don’t know the details. As one of the other callers said, we can’t really even get the president to outline what he does or doesn’t support in any detail. So we’ll have to see. I’d say that’s a possibility.

You’re starting to see more governors, including me, and specifically Gov. Perry from Texas, and most Republican governors express concern around these issues and get more aggressive about asserting and bringing up the 10th Amendment. So I think we could see hopefully a resurgence of those claims and maybe even lawsuits if need be.

More Pawlenty on Obama here. Andy Barr has more on the call.

This post has been updated.

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Lawyers have been making that argument for years now, but the United States has insisted that the prisoners at Bagram have no right to challenge their detention in a U.S. court. The Obama administration recently appealed a federal court’s ruling that some of the prisoners do indeed have that right.

Now, notwithstanding any constitutional concerns, Maj. Gen. Doug Stone is reportedly recommending that the United States completely revamp its detention policy in Afghanistan, focusing on rehabilitating rather than simply imprisoning the detainees. He also acknowledges that the vast majority of the men held at Bagram were likely swept up in raids yet had not engaged in hostilities against the United States.

As I’ve written before, many of the prisoners at Bagram have been held there for six or seven years without charge or access to lawyers. Stone worries that imprisoning them without charge or an ability to defend themselves for years will turn them into hardened anti-American radicals.

Stone’s 700-page report is not yet available, but he has reportedly briefed senior U.S. officials on his findings, including the top commander in Afghanistan, Gen. Stanley McChrystal; Ambassador Richard Holbrooke, special envoy for Afghanistan and Pakistan; and Secretary of State Hillary Rodham Clinton. Stone earlier helped revamp the prison system in Iraq.

McChrystal is expected to address the issue of detention facilities in an assessment of Afghanistan due within the next few weeks.

“[I]t is not within our power as members of Congress, it’s not within the enumerated powers of the Constitution for us to design and create a national takeover of health care. Nor is it within our ability to be able to delegate that responsibility to the executive.”

It is true, of course, that the power of Congress “to design and create a national takeover of health care” is not stated anywhere in the founding document.

However, as Birkey notes, Article 1, Section 8 of the Constitution — where the “powers” of Congress are “enumerated”  — includes the following:

The Congress shall have Power To … provide for the common Defence and general Welfare of the United States;

It also includes this power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

I’m no constitutional scholar, but enacting laws to reform the health care system to help provide insurance to the roughly 45 million Americans currently going without sounds like it might be covered under a reasonable reading of the “general welfare” clause.

Maybe Bachmann can be forgiven — interpreting the Constitution never really was her strong point.

Rep. Patrick McHenry (R-N.C.) just shot out a statement declaring that he has “absolutely no reason to question President Obama’s citizenship.”

I anticipate that as a legal matter the courts will continue to come to the same conclusion.

But he also leaves a bit of room for doubt, adding that his view is based only on a cursory survey of the case. “I have not carefully reviewed the evidence as a jurist would,” he said.

Something there for both sides of this inane debate.

Sonia Sotomayor at her Senate confirmation hearing on Tuesday (WDCpix)

It took four months to confirm Harold Hongju Koh as the State Department’s legal adviser, largely because he believed in the relevance of foreign and international law.

By the end of the second full day of questioning Supreme Court nominee Sonia Sotomayor on Wednesday, it was clear that similar issues are troubling Republicans about her confirmation as well. And in her case, it’s a lifetime appointment that’s at stake. In sharp questioning, critics accused her of flip-flopping on the issue, stating in earlier speeches that foreign law should influence judges’ reading of the U.S. Constitution, and then testifying at the hearing that only U.S. law controls cases in U.S. courts.

Illustration by: Matt Mahurin

The fear among Republicans, as Sen. John Cornyn (R-TX) put it, is that on the Supreme Court, Sotomayor will be untethered from the constraints that have, until now, controlled her opinions on the court of appeals. “You will be free as a U.S. Supreme Court justice with no court reviewing those decisions,” said Cornyn.

Sen. Tom Coburn (R-Ok) was among those who pressed Sotomayor hardest about her views on foreign law at the hearing yesterday. He quoted passages from a speech she gave to the ACLU in Puerto Rico in April in which she said: “to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas.”

Coburn was very concerned, he said. “Can you cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country?”

“My view is that there is none,” said Sotomayor.

“So today do you stand by this statement that there is no authority to utilize foreign law in making decisions under the constitution?” he asked.

“Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the constitution,” Sotomayor repeated.

Coburn persisted, reminding Sotomayor that she’d told the ACLU that “to suggest that you can outlaw the use of foreign law is based on a fundamental misunderstanding, and is “asking judges to close mind to ideas.” How could she reconcile those positions?

Sotomayor methodically explained that there is “no conflict” between what she told the ACLU and what she said at the hearing. In her speech to the ACLU, she said, “repeatedly I pointed out both that the American legal system was structured not to use foreign law as a holding or as precedent. What I pointed out in that speech is that there was a public misunderstanding of the word “use” in that discussion. What judges do is educate themselves, they build up a store of knowledge that one might consider. That’s just thinking.. . . In my experience when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion, they’re using it to make a comparison,” she said. “They’re not using it to compel a result.”

That did not satisfy her critics, however. Sen. Jeff Sessions (R-Ala.), quoted from the same ACLU speech, noting that she’d said, citing Justice Ruth Bader Ginsburg, that “unless American courts are open to discussing the ideas raised by foreign cases and by international cases, that we are going to lose influence in the world.”

“That’s troubling,” said Sessions, who, like Coburn, suggested that now Sotomayor was changing her tune.

Sotomayor’s critics have been making the case to the media as well. On Tuesday, Lou Dobbs on CNN hosted Ed Whelan, President of the Ethics and Public Policy Center and contributor to the National Review, who made that argument, without any correction from Dobbs. And Politico reported after yesterday’s hearing that Sotomayor “seemed to pull back from a speech defending the use of foreign law by American judges.”

In fact, a look at what she told the ACLU and what she said at her hearing makes clear that Sotomayor’s views on the role of foreign law have been remarkably consistent, but repeatedly taken out of context.

Here’s what Sotomayor told the ACLU in April:

“We don’t use foreign or international law. We consider the ideas that are suggested by international and foreign law. That’s a very different concept. And it’s a concept that is misunderstood by many. And it’s what creates the controversy in America that surrounds the question of whether American judges should listen to foreign or international law. . . How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing. They permit us to think. And to suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that’s based on a fundamental misunderstanding. What you would be asking American judges to do is to close their minds to some good ideas. …. Ideas are ideas. Whatever their source. Whether they come from foreign law or international law or a trial judge in Alabama or a circuit court in California or any other place, if the idea has validity, if it persuades you, then you’re going to adopt its reasoning. If it doesn’t fit, then you won’t use it. And that’s really the message that I want you to leave with here today.

American law is structured against the use of foreign and international law…But nothing in the American legal system stops us from considering the ideas that that law can give us.”

Seen in its full context, this passage doesn’t seem particularly controversial; it never allows foreign law to control American legal decisions. So what’s the big controversy?

Although the issue comes up rarely, it can arise in particularly controversial situations involving societal norms and ethics, such as the death penalty. And that’s where conservatives tend to object to it.

The foreign law controversy most recently took center stage when, in 2005, the Supreme Court decided by a narrow 5–4 majority that it it violates the Constitution’s ban on “cruel and unusual punishment” to impose the death penalty on someone who had committed the crime under the age of 18. Reversing an earlier opinion from 1989, the court in Roper v. Simmons made the 2005 decision based on “evolving standards of decency.” To determine those, the court looked first to the states, which were increasingly outlawing the execution of juvenile criminals. But it also considered the laws of other countries, noting that while seven other countries had in the past executed juveniles, by 1990, the United States stood alone in the world as still endorsing the practice. The Court added that only the United States and Somalia had not ratified Article 37 of the United Nations Convention on the Rights of the Child, which expressly prohibits capital punishment for crimes committed by juveniles.

Even considering international treaties or foreign laws deeply offends many Republican senators, however. (Democrats have essentially ignored the issue.) “I’m not sure I agree with that [idea that we should consider foreign law], certainly not on 14th Amendment and 8th Amendment cases,” said Coburn yesterday. “Should we worry about what other people think about us? Is it important that we look good to people outside of this country, or is it more important that we have a jurisprudence that’s defined correctly?”

In response, Sotomayor — who has never referenced foreign law in any of her rulings — carefully chose the latter option.

And Sotomayor actually answered some of them.

In particular, asked by Franken whether she believes the Supreme Court’s recent decision invalidating part of the Voting Rights Act was an “activist” decision that overrode the intent of Congress and the language of the Constitution, she declined to comment on the Supreme Court’s opinion, but instead pointed out her own ruling in a previous case involving the Voting Rights Act, strongly implying that she thought the Supreme Court had indeed gone too far.

In the case she decided, “I suggested that issues of changes to the Voting Rights Act should be left to Congress in the first instance,” she said. That was one of the most direct answers on an issue likely to come before the court that she’s given yet.

And Franken wins points for asking another roundabout question meant to elicit her views on “judicial activism” — a phrase Sotomayor said she doesn’t like to use.

“How often have you decided a case on an argument or a question that the parties have not briefed?” asked Franken.  This question goes to the heart of the Ricci reverse discrimination case, where the Supreme Court on its own set out a new standard for lower courts to follow, then refused to send the case back to the courts to let the parties brief how it applied to the facts at hand.

Sotomayor could not remember a single instance of doing that as a judge.

She also couldn’t remember, when Franken asked her as he wound up his questioning, the name of the one case that the prosecutor on the Perry Mason show won.  To which Franken replied: “Didn’t they prepare you at the White House for this hearing?”

McCain replied that Kris’ statement means the Obama administration believes “enemy combatants” have constitutional rights similar to those of “U.S. citizens.” Kris quickly rejoindered: “No, not at all, I don’t think that’s right,” he said, clarifying that his point is about “due process rights as applied to the commissions.”

Interestingly, McCain’s longstanding ally, Sen. Lindsey Graham (R-S.C.) elevated the discourse later, saying it wasn’t an issue of the accused having constitutional rights, but rather the fact that “the courts will look at these trials,” Graham said later.

“That’s essentially exactly what I was saying to Sen. McCain,” Kris replied.

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Concluding that this is a matter for state legislatures, not the federal courts, to decide, Chief Justice John Roberts wrote in District Attorney’s Office v. Osborne that the Supreme Court is “reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA.”

Even as the majority acknowledged the critical new role that DNA evidence can play in the criminal justice system — the test “has exonerated wrongly convicted people, and has confirmed the convictions of many others” — the court ruled that it’s still not, as the imprisoned defendant had claimed, a matter of due process rights guaranteed under the U.S. Constitution, but rather a procedural matter for states to decide how they want to handle the evidence and interpret their statutes regarding post-conviction relief.

In a scathing dissent, Justice John Paul Stevens — joined (again) by Justices Ginsburg, Breyer and Souter (in part) — wrote that the majority had misinterpreted both the facts and the law.

The “most elemental” of the liberties protected by the Due Process Clause is “the interest in being free from physical detention by one’s own government,” Stevens wrote. Noting that “nearly all the States have now recognized some postconviction right to DNA evidence,” and that prosecutors are required to turn over exculpatory evidence, it is “appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.” Given that the evidence would absolutely prove Osborne’s guilt or innocence, Stevens wrote, Alaska’s refusal to provide it was “arbitrary” and a denial of the federal constitutional right of due process.

Because the Supreme Court had long similarly refused to acknowledge a right to counsel for the indigent in criminal cases by saying it was a matter of state procedure rather than due process, the dissenting justices argued that it was time to recognize a limited right to DNA evidence.

“Osborne has demonstrated a constitutionally protected right to due process which the State of Alaska thus far has not vindicated and which this Court is both empowered and obliged to safeguard. On the record before us, there is no reason to deny access to the evidence and there are many reasons to provide it, not least of which is a fundamental concern in ensuring that justice has been done inthis case.”