I decided I wasn't up for live blogging the House hearing on internet gambling, but here is a brief review of some points that were made. (You can view the webcast here -- it's still ongoing, but they have taken a break). [UPDATE - here is a link to the webcast, now completed: http://judiciary.house.gov/oversight.aspx?ID=396]
Rep. Shelley Berkley of Nevada (Las Vegas) criticizes existing gambling laws for their "selective enforcement" and for the "hypocritical carve out for horse-racing." She notes that the WTO has ruled against us and the Bush Administration has tried to withdraw our commitments, which, she says, is the "trade equivalent of taking our ball and going home."
Rep. Bob Goodlatte of Virginia says that "gambling is not a victimless activity" and says the current laws are reducing underage gambling.
U.S. Attorney Catherine Hanaway offers the views of the DOJ. She says that all forms of internet gambling are illegal under federal law and should remain illegal, based on the unacceptable risk due to gambling by minors, compulsive gambling, fraud, money laundering and organized crime.
Now to the trade law parts, with Professor Weiler. His testimony starts about 45 minutes into the hearing and lasts about 7 minutes.
First, Prof. Weiler noted that he expresses no views on gambling or internet gambling. On the trade law issues, he says that the U.S. reaction to the WTO ruling has been "curious," in two respects: (1) despite a clear ruling that there is a WTO violation, the U.S. continues to prosecute people for internet gambling activities; (2) the U.S. has announced it will withdraw its commitments. These two reactions, he says, are "damaging" to the U.S. He notes that the U.S. is a world leader in trade matters and leads by example. This, however, is not a good example to set. He points out that the U.S. reaction in this case could be detrimental if other Members follow this example in the future.
His written testimony is here: http://judiciary.house.gov/media/pdfs/Weiler071114.pdf In it, along the lines of the Gary Kaplan WTO defense mentioned here, he says:
This Committee is not a court of law so I will spare it a lengthy legal analysis concerning the question whether or not individuals may rely in their defense against the indictments brought against them on the fact that the Acts on which such indictments have been brought have been found to be in violation of the US legal obligations when applied to individuals supplying remote betting services from other WTO Members. Some language in the Uruguay Round Agreement Act notwithstanding I think there are weighty legal arguments that individuals should not be denied, in defending themselves, the ability to argue that Congress did not intend in approving US participation in the WTO, that prosecutorial discretion should be exercised in a manner which would bring the United States into violation of its international legal obligations. There is, however, one crucial point which should be of interest to this Committee. In many of its utterances the Executive Branch has taken the position that it is defending the “sovereignty” of the United States as a whole, and that in its conduct in this matter it is executing the will of Congress. I respectfully and vigorously dispute both these propositions. When a country solemnly adopts an international legal obligation and then honors that obligation it does not compromise its sovereignty – it manifests its sovereignty. For generations the United States has taken the view that all Congressional Acts should, if at all possible, be interpreted and applied in such a way as to respect international obligations solemnly undertaken by this Country. This is called the Charming Betsy doctrine. We expect the same from all other countries. It is possible to interpret both the Uruguay Round Agreement Act (taking the US into the WTO) and the Statutes under which the Executive Branch is seeking to ban remote betting from service suppliers located in our WTO partners, in a manner which would respect American international legal obligation and commitment to the rule of law. The Executive Branch is doing no service to the US by violating these obligations, and laying the responsibility at the feet of Congress. Congress should not allow such.
After a few more witnesses testified, the Chairperson then asked the witnesses for any general views they wanted to offer. Prof. Weiler's response is around one hour and 22 minutes into the hearing. Prof. Weiler says he was struck by the absence of mention in the DOJ statement anything about the prosecution issue. He wonders what the DOJ position would be if China were to prosecute a U.S. citizen in violation of international legal obligations owed to the U.S.?
In response, Ms. Hanaway said it would be unwise for her to address a hypothetical situation that does not exist. She notes that the DOJ is currently prosecuting some of the BetonSports executives, and that motions have been made in that case that the prosecution violates the WTO treaties. She points out that (1) Congress made clear that WTO treaties do not overturn existing U.S. laws and (2) the defendants are private citizens and thus don't have a right to make challenges under the WTO treaties.
The Chairperson then asks Prof. Weiler whether he is "mildly satisfied" by that answer? He responds that it is an unfortunate position for the U.S. in terms of the rule of law.
ADDED: At around 2 hours 54 minutes of the hearing, Rep. Goodlatte discussed the WTO issues, and asked Prof. Weiler some additional questions. There was talk of situations involving cocaine or shoulder-fired weapons. At around 3 hours into it, Prof. Weiler responded that this is not national security; this is not cocaine; and there is no vital national interest.
