Today, Kentucky’s junior senator, Republican Rand Paul, testified at the U.S. House of Representatives’ Natural Resources Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs Subcommittee hearing regarding the Freedom from Over-Criminalization and Unjust Seizures Act of 2012—or FOCUS Act—which was introduced in the House by Rep. Paul Broun (R-Ga.). Earlier this year, Sen. Paul introduced the FOCUS Act in the Senate. This legislation aims to amend the Lacey Act, a law that currently allows the federal government to apply foreign law to American citizens and businesses.
Originally passed by congress in 1900, the Lacey Act had the commendable goal of prohibiting trafficking in illegal wildlife, fish and plants. Over the years, however, the bill has been amended several times, and has turned into a nightmare of legal snares which force US companies to understand and comply with laws and regulations from almost 200 foreign countries.
In his testimony today, Sen. Paul makes reference to a couple of recent horror stories in which overly-zealous government agents swooped down on legitimate American businesses and charged them with violating the regulations of foreign countries. Paul’s statement said, “Victims include David McNab and Abner Schoenwetter, who spent years in federal prison for ‘violating’ invalid Honduran fishing regulations and, most recently, Henry Juszkiewicz, the Chairman and CEO of Gibson Guitar Corp., whose company was raided by armed federal agents this past August.”
In the August, 2011, raid on Gibson Guitar factories in Nashville and Memphis, agents from the Departments of Homeland Security and Fish & Wildlife came in to the buildings, pointing loaded weapons at employees, and they seized more than a half-million dollars worth of property; effectively shutting down the operations. The feds claimed that Gibson was using an “inappropriate tariff code” on wood from India, in violation of the Lacey Act.
The wood in question—used in Gibson guitars—was not an endangered species, and was legally purchased and imported into the U.S. At issue was whether the wood was the correct level of thickness and finish before being exported from India. Under Indian regulations, the raw wood can be exported, but cannot be used for anything by the importing company without some labor content from India.
Even more bizarre is the fact that, as of today, nine months after the raid, no civil or criminal charges have been brought by the federal government against Gibson Guitar.
Transcript of Sen. Paul’s testimony:
Thank you Chairman Fleming, and thank you for inviting me over here to talk about this important issue.
When I first heard about the raid at Gibson Guitars I was appalled that this could happen in the United States of America; That we would send in federal agents from Fish and Wildlife [Services] with automatic weapons to invade a company that hires 2,800 people around our country.
These are law-abiding people that are making guitars. There are no grizzly bears in downtown Nashville or in Gibson Guitar that we need to be concerned with. I was aghast when I learned that what they were accused of was not breaking a U.S. law. They were accused of breaking a foreign law.
The more we looked into this, I was then incensed to find out that the foreign law they were accused of breaking has nothing to do with conservation, has nothing to do with the rainforest. That all that hyperbole about rainforest and conservation has nothing to do with the issue here.
They're accused of breaking an Indian labor law. This is a law that says the wood has to be finished in India. The same wood can come here, they just want the jobs over in India and not over here. They have actually said, in their legal pleadings, that if Gibson Guitar would finish the wood over there they won't be in violation.
So if we send the jobs we have in Nashville over to India everything is fine? This is ridiculous. I could not believe we have a law on our books saying we have to obey all foreign laws. How could that possibly be an American law and how could that possibly be constitutional. Not just all past foreign laws, we've agreed to obey all future foreign laws.
There was a case a few years ago of two fisherman off the coast of Florida - Abner Schoenwetter and David McNab. They got six years in prison for breaking a law that wasn't a U.S. law, but for breaking a Honduran fishing regulation.
There's something from the tradition of due process that you have to have fair notice and it comes out of our common-law tradition. How are you supposed to have fair notice of a Honduran law? What if you don't speak Spanish? What if you don't speak Mandarin and its Chinese fishing regulation?
We're expected to obey all the laws of the entire world? It really smacks at our sovereignty and smacks at the concept that we create the laws in our country and that we're of any importance here, than we're going agree to accept all past and future laws of foreign countries?
So I think really this is something that is long overdue and it really grieves me that we put two people in jail for six years for breaking laws of a foreign country. And in their case, the Honduran government actually came and testified on their behalf and said they hadn't broken the laws.
One of the laws that they were accused of breaking was that the fish were not in cardboard, they were in plastic. You know to put someone in jail for that - you can be put in jail a year for each one of these misdemeanor crimes. What if you brought in 30,000 lobsters and they found 10,000, you could get 10,000 years in prison.
It is out of control, it's outrageous, and we need to do something to stop it. Really you need to say look, if we're in favor of the environment, and I am, and you want to protect against illegal logging or protect certain species, if you don't people cutting off the horns of a rhinoceros and importing it; make a law, that's what were here for.
Make the law, but then it would be a U.S. law, but don't say that we're going to accept all the laws in Kenya or that we're going to accept all the laws of South Africa. That is absurd on its face, its Pandora's box, we've gone too far. There now are forty-five hundred federal crimes; the Constitution only authorizes us to deal with four crimes: treason, counterfeiting, and a couple of other crimes, laws against nations.
But it doesn't authorize us to be involved in all of this. We can have some restrictions on importation, but I see no reason to have criminal penalties. Our bill is very simple; we get rid of all reference to obeying foreign laws, which doesn't do anything to the Lacey Act. You still have restrictions in the Lacey Act and if you need more, pass them.
But don't obey foreign laws and it says we should have civil penalties, not criminal penalties. I don't think we should be putting Americans in jail for this. Thank you Mr. Chairman, I yield back my time.
Sen. Rand Paul Testifies on The FOCUS Act
At The House Natural Resources Committee - 05/08/12
The Great Gibson Guitar Raid: Months Later, Still No Charges Filed
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