[Warning: This post is pretty exhaustive. Read the Dean article for a good overview. ;-) ]
Senators Graham and Kyl inserted a colloquy masquerading as a live debate on the Senate Floor into the Congressional Record after the passage of the Detainee Treatment Act (the text of the DTA can be read here or in a slightly different format here). Apparently, such an insertion is fairly common. What is uncommon is to cite such an insertion as evidence of congressional intent in an amicus brief to the Supreme Court.
It’s important to be clear. The insertion by Graham and Kyl into the Congressional Record was not illegal, although it certainly seems unethical since the intent appears to be one of deliberate deception. In contrast, lying in their amicus brief was both illegal and unethical. Since the amicus brief made a blatantly false claim which forms the primary basis for the brief, it’s almost impossible for Graham and Kyl to claim innocence on the matter.
Finally, while both Justice Stevens and Justice Scalia make note of the Congressional Record on the DTA, the greater substance of both opinions do not rest upon it (it is amusing, however, that Scalia notes Bush’s signing statement on the DTA, as if Bush’s opinion had any bearing on the law whatsoever — Bush’s statement, which can be read here, predictably states that the Supreme Court does not have jurisdiction; keep in mind that the Bush administration is the defendant in Hamdan!). Thus, while it seems all but certain that Graham and Kyl's lies to the Supreme Court were a deliberate attempt to influence the Supreme Court's eventual decision, they did not succeed. Credit for uncovering this skullduggery goes to the Hamdan lawyers (likely the clerks of Justice Stevens did his detailed footnote research, and who knows if the aforementoned bloggers were read?). Marty Lederman of Scotusblog has a good immediate summary of the 185-page decision here.
After the predictable hue and cry of conservatives over the Hamdan decision, I began to wonder if it would become a GOP talking point that the Supreme Court had scurrilously violated the will of Congress. Sure enough, it has. The core of Scalia’s dissent is that Stevens is ignoring the actual language of the DTA, while the issue of congressional intent as divined by recorded debate is secondary (not that congressional intent can be entirely separated from the law itself, of course, but the Congressional Record was brought up by both sides, supposedly to clear up key points of contention in interpreting the DTA). The congressional intent angle has in fact proven very popular with conservative pundits such as Tony Blankley, appearing on NPR’s Left, Right and Center, and Charles Krauthammer, in a recent op-ed. Their charges have been contentious if not disingenuous.
(The Supreme Court’s pdf of the Hamdan decision, 185-pages long, can be downloaded here, while a web text version can be read here.)
To go to the record, Justice Stevens in footnote 10 on page 15 of his Hamdan opinion observes (italics in the original changed to bold here):
We note that statements made by Senators preceding passage of the Act lend further support to what the text of the DTA and its drafting history already make plain. Senator Levin, one of the sponsors of the final bill, objected to earlier versions of the Act's "effective date" provision that would have made subsection (e)(1) applicable to pending cases. See, e.g., 151 Cong. Rec. S12667 (Nov. 10, 2005) (amendment proposed by Sen. Graham that would have rendered what is now subsection (e)(1) applicable to "any application or other action that is pending on or after the date of the enactment of this Act"). Senator Levin urged adoption of an alternative amendment that "would apply only to new habeas cases filed after the date of enactment." Id., at S12802 (Nov. 15, 2005). That alternative amendment became the text of subsection (h)(2). (In light of the extensive discussion of the DTA's effect on pending cases prior to passage of the Act, see, e.g., id., at S12664 (Nov. 10, 2005); id., at S12755 (Nov. 14, 2005); id., at S12799-S12802 (Nov. 15, 2005); id., at S14245, S14252-S14253, S14257-S14258, S14274-S14275 (Dec. 21, 2005), it cannot be said that the changes to subsection (h)(2) were inconsequential. Cf. post, at 14 (Scalia, J., dissenting).)
While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263-S14264 (Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) ("I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006" (emphasis added)). All statements made during the debate itself support Senator Levin's understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252-S14253, S14274-S14275 (Dec. 21, 2005). The statements that Justice Scalia cites as evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdiction, see post, at 12, n. 4 (dissenting opinion) (quoting 151 Cong. Rec. S12796 (Nov. 15, 2005) (statement of Sen. Specter))--a construction that the Government has expressly disavowed in this litigation, see n. 11, infra. The inapposite November 14, 2005, statement of Senator Graham, which Justice Scalia cites as evidence of that Senator's "assumption that pending cases are covered," post, at 12, and n. 3 (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the uncontradicted statement of his co-sponsor, Senator Levin, assuring members of the Senate that "the amendment will not strip the courts of jurisdiction over [pending] cases." Id., at S12755.
Tipped by the Hamdan lawyers about the lie in the amicus brief, Stevens reviewed the Congressional Record and caught Graham and Kyl red-handed. (The website for searching Congressional Records is here but does not allow direct links.) And sure enough, in the Congressional Records for 11/14/05 Senator Carl Levin (D-MI) states his reservations about the amendment in its previous form, and praises his colleagues for considering and incorporating his concerns. The express purpose of the new, improved Graham-Levin-Kyl amendment was to deal with judicial review, most of all by the Supreme Court. Levin’s statements on this issue start in Congressional Record S12754 (all emphasis mine):
One of the reasons I voted against the amendment last Thursday is that it did not provide for that direct judicial review of convictions by military commissions. That is the major change in the amendment before the Senate, the so-called Graham-Levin-Kyl amendment which is before the Senate.
This same speech by Levin continues into Congressional Record S12755:
Our laws and the review which is provided for now, if we agree to this amendment to the adopted Graham amendment, would explicitly make it clear that the review of a court would look at whether standards and procedures that have been agreed to are consistent with our Constitution and our laws.
The other problem which I focused on last Thursday with the first Graham amendment was that it would have stripped all the courts, including the Supreme Court, of jurisdiction over pending cases. What we have done in this amendment, we have said that the standards in the amendment will be applied in pending cases, but the amendment will not strip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected.
The direct review will provide for convictions by the military commissions, and because it would not strip courts of
jurisdiction over these matters where they have taken jurisdiction, it does, again, apply the substantive law and assume that the courts would apply the substantive law if this amendment is agreed to. However, it does not strip the courts of jurisdiction.
Interestingly, Senator Graham is the next person to speak, and he does not contradict Levin at all on this central issue of jurisdiction. In fact (in the same Congressional Record) Graham remarks:
But Senator Levin was right. The military commission, part of it is written in a way without a direct appeal to Federal courts. There is historical precedent for doing it in-house, but there is a Supreme Court review precedent. So I am willing to take that part of the amendment that was not really the focus of the lawsuit abuse and come up with a compromise the country should be proud of.
Graham later boasted of the fact that the bipartisan Graham-Levin-Kyl amendment passed with a vote of 84-14.
If that were not enough, on 12/21/05, Senator Harry Reid (D-NV) made a statement regarding the final version of the broader law (from Congressional Record S14275, emphasis mine):
I am also pleased that the final law would allow courts to consider whether the standards and procedures used by the Combatant Status Review Tribunals are consistent with the Constitution and U.S. laws, that it does not apply retroactively to pending habeas claims that challenge past enemy combatant determinations reached without the safeguards this amendment requires, and that it would allow for court review of the actions of military commissions. I commend Senator LEVIN for his work on these issues.
On balance, I support the final detainee provisions with the following understandings:
First, I am pleased that Senator Graham's original language was altered so that the Supreme Court would not be divested of jurisdiction to hear the pending case of Hamdan v. Rumsfeld. In fact, subsection (h) of section 1005 makes clear that the DC Circuit and other courts will maintain jurisdiction to hear all pending habeas cases, in accordance with the Supreme Court's decision in Lindh v. Murphy.
Second, on a related but distinct point, I believe this act has no impact on the Supreme Court's ability to consider Hamdan's challenge at this pre-conviction stage of the military commission proceedings. As the DC Circuit held in Hamdan earlier this year, Ex Parte Quirin is a compelling historical precedent for the power of civilian courts to entertain challenges that are raised during a military commission process. Nothing in these sections requires the courts to abstain at this point in the litigation. Paragraph 3 of subsection 1005(e) governs challenges to ``final decisions'' of the military commissions and does not impact challenges like Hamdan's other cases not brought under that paragraph.
Third, this legislation does not represent congressional acquiescence in or authorization of the military commissions unilaterally established by the executive branch at Guantanamo Bay. Whether these commissions are legal is precisely the question the Supreme Court will soon decide in the Hamdan case. Rather, this legislation reflects the fact that the military commissions are currently legal under the DC Circuit's decision in Hamdan. We legislate against this backdrop in setting up a procedure to challenge the commissions, but we do not necessarily endorse the use of such commissions in this manner.
While Senators can of course claim whatever they damn well please, they also may be challenged. Levin and Reid both make unequivocal statements regarding the Supreme Court’s jurisdiction over Hamdan. Graham, Kyl and the other senators do not challenge these statements in live debate, and Levin’s amendment, co-sponsored by Graham and Kyl themselves, was expressly designed with Hamdan in mind. As far as congressional intent goes, it seems pretty obvious. Congress as a whole did not intend to strip the Supreme Court of jurisdiction for Hamdan (Reid even specifically mentions Lindh v. Murphy as well as subsection (h), both cited later by Stevens and Scalia in the Hamdan decision).
The calculated colloquy between Graham and Kyl (with at least one interjection by Brownback to add to the illusion) was inserted as Congressional Records S14256-S14275, after the bill was voted on (and before Bush signed it into law on 12/30/06). The irony — and their mendacity — cries out in a few choice passages, such as in this “exchange” from S14263-S14264 (emphasis mine):
[Mr. KYL]I suppose that some might argue that stripping the Supreme Court of jurisdiction over a pending case is unconstitutional if it is driven by some impure motive. But I can't imagine that the court would take away an authority clearly granted to Congress by the Constitution, regardless of what motive one might attribute to us. I am a member of this body, and would have great difficulty describing some definitive motive or intent to every law that we enact. I don't know how the Supreme Court or any other court could accurately discern such a motive. The laws that we enact have meanings that can be discerned through ordinary rules of construction. I think the rule of law is much more secure when the meaning of legislation is governed by those universally accessible rules of construction rather than through some attempt to psychoanalyze Congress's motive. And in any event, as I recall, this amendment was filed before the Supreme Court even granted review in the Hamdan case. That makes it a little hard to argue that the amendment was motivated by a desire to strip the court of its jurisdiction in that case. I don't think that the Constitution gives Hamdan a greater right to have his case go forward than it did to Colonel McCardle.
Mr. GRAHAM. So once this bill is signed into law, you anticipate that the Supreme Court will determine whether to maintain their grant of certiorari?
Mr. KYL. Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. That is what they did in Ex Parte McCardle. I assume that we may see an unhappy dissent from the court's order from one or two of the Justices--there may be some members of the court who refuse to accept McCardle and article III. But I think that a majority of the court would do the right thing--to send Hamdan back to the military commission, and then allow him to appeal pursuant to section 1405 of this bill.
Ah, what "impure" motive could possibly be attributed to such sterling fellows as these? Especially when one is aware of the intent of this colloquy — to falsely represent the bill they have just voted on — and specifically, to misrepresent their own amendment with Levin! — the knavishness of these rogues' statements is breathtaking. Their assertions contain at least one outright lie, disguised as “misrecollection” — John Dean reports that the Supreme Court took the case on 11/7/04, roughly a year before Kyl claims it was enjoined. As Emily Bazelon notes in her post, “Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't.” Christy Hardin Smith’s post adds to this, quoting a newspaper article that reports that “U.S. Senate historian Richard Baker told The Washington Post that the actions were unprecedented.”
Their colloquy was inserted after the bill had passed in the Senate, and the revised version of their own amendment upheld the Supreme Court's jurisdiction, but apparently these were negligible concerns for Graham and Kyl. In their amicus brief (pdf downloads available through the Dean and Bazelon links or html version here), Graham and Kyl nevertheless boldly state (emphasis mine), first on page 13:
151 Cong. Rec. S14,263 (daily ed. Dec. 21, 2005) (statement of Sen. Kyl) (“The courts’ rule of construction” is that “legislation ousting the courts of jurisdiction is applied to pending cases.”).
And later on pages 14-15:
B. The legislative history confirms that Congress intended all pending claims to be governed by the DTA, and sought to prevent cases from proceeding under previously applicable statutes. In an extensive colloquy (which appears in the Congressional Record prior to the Senate’s adoption of the Conference Report), Senators Graham and Kyl made it clear that the statute “extinguish[es] one type of action—all of the actions now in the courts—and create[s] in their place a very limited judicial review of certain military administrative decisions.” 151 Cong. Rec. S14,263 (daily ed. Dec. 21, 2005) (statement of Sen. Kyl). The special language in “paragraph (h)(2)” declaring that the new cause of action and substantive standards created by the DTA shall “apply to pending cases” helps make it clear that, to the extent a case is already in the proper court and meets the DTA’s requirements, the claim need not be dismissed; instead, “that claim [can] go forward” as a “request for review of the detainee’s CSRT pursuant to Section (e)[(2)].” Ibid. (statement of Sen. Graham); 151 Cong. Rec. S12,755 (daily ed. Nov. 14, 2005) (statement of Sen. Levin) (no dismissal required but “the standards in the amendment [would] be applied in pending cases”). The notion that Congress specifically amended the DTA to make it inapplicable to pending cases is incorrect. It was revamped to provide for review of military commission decisions that otherwise would have been wholly unreview-able. The provisions setting forth effective dates were also modified at the same time. But that modification merely clarified that pending cases could—indeed were required to—proceed under the standards established by Section 1005(e) itself and did not, to that extent, need to be dismissed entirely.
The bolded sections above are, of course, outright lies.
It’s hardly surprising that after Graham and Kyl deceived their fellow senators and the Supreme Court, Graham also lied to the public. Some organizations, such as Human Rights Watch, were deeply uneasy about the DTA. In a Washington Post op-ed on 12/6/06, Graham sought to reassure the public about the Graham-Levin-Kyl amendment. (emphasis mine):
In addition, the amendment requires federal court review of any military commission conviction involving a war crime and a sentence of 10 or more years. The court can choose to review cases with sentences of less than 10 years, and the Supreme Court will have the right to review lower court actions if petitioned.
Perhaps Graham changed his mind, but that's almost impossible to believe. His op-ed, like the rest of his conduct, was undertaken in bad faith. This is how dirty deeds are done, and I find it fascinating to uncover (thus the length of this post!). This is just standard operating procedure, modus operandi for these guys. It was also back in December of 2005 that Attorney General Alberto Gonzales wrote an op-ed in The Washington Post urging re-passage of the Patriot Act. In the op-ed and his online discussion of it, Gonzales gave special emphasis to the point that no eavesdropping could occur without a warrant granted by a federal judge. That same week, The New York Times broke the first NSA scandal, involving warrantless eavesdropping (a story for which they won the Pulitzer), and by Monday of the next week, Gonzales was publicly defending the illegal program.
Graham and Kyl inserting their colloquy after the vote is a move strikingly similar to Bush’s practice of signing statements (and, of course, Bush's signing statement in this case supports Graham and Kyl's revisionist history versus the actual law). Meanwhile, this entire gambit by Graham and Kyl is typical of their allies in the Bush administration, from Gonzales' deceptions about the Patriot Act to the end-run done around Alberto Mora on torture to any of a number of moves by the obscenely powerful Office of the Vice President. We've seen this pattern many times before, perhaps most clearly with McCain’s anti-torture act. Bush and his allies first ferociously lobbied against the bill, arguing that although they did not torture (they did), they needed to retain the right to torture just in case it became necessary. When it became clear they were going to lose, they publicly acquiesced, the bill passed 90-9 in the Senate, but Bush then issued a signing statement asserting his right to ignore the explicit directives of the very law he had just reluctantly agreed to! Similarly, while the DTA did create some good provisions such as guidelines for humane treatment, its main purpose for Graham and his allies seems to have been stripping Guantanamo prisoners of habeus rights and barring the Supreme Court from ruling on Hamdan, since Bush had already lost grounding with the recent Rasul decision (Dean covers this aspect well in his article, and Glenn Greenwald has often wrote about how the Bush administration, for all its pleas about the legality of its actions, consistently seeks to bar or avoid any sort of judicial review or oversight). In other words, Graham and Kyl tried to push a bad law, failed, agreed to a better law in public, then when no one was looking, acted to undermine a key aspect of the very law they had just passed. If that were not enough, they then lied to the Supreme Court in an attempt to influence the Court's decision on a case that many legal scholars feel may be the most important one to date on Executive Power in the Constitution. Even if this was a freelance move by Graham and Kyl and their actions were not coordinated with the White House, their ultimate goal was surely supported by the Bush administration - especially with Bush writing a specious signing statement for further cover. This is a racket, and thank god the Supreme Court said no to it.
It’s hard to avoid the conclusion that the leadership of the GOP just cannot have a honest debate, public or otherwise, and has no respect for the due process of law. When they don’t get what they want — even when it is in the nation’s best interests that they not get what they want — they subvert all process by reluctantly agreeing to reasonable compromises in public while acting to subvert those same agreements in private. I’m reminded of the Iran-Contra scandal, a shameful affair that not coincidentally was vigourously defended by Cheney and Addington, the same immoral architects of this entire flawed, illegal military commission apparatus. Today the White House announced it would abide by the Hamdan decision and observe the Geneva conventions, a measure that surely made David Addington’s head explode once again. I honestly have to wonder if the Bush administration actually intends to live up to its pledge, though, given their track record and since they still have black op prisons and the practice of extraordinary rendition at their disposal. Even on the most obvious issues, these guys just do not admit mistakes and just do not learn.
Regardless of one’s thoughts on the Hamdan decision, Graham and Kyl clearly lied and acted in bad faith. But will they face any consequences, or will inter-branch collegiality rule the day? It seems to me that senators should be held to a higher, not lower, standard. They should be prosecuted, and/or censured. At the very least, they should be publicly humiliated for their underhanded (and thankfully unsuccessful) gambit. As is often the case, America must be protected from those who claim to be its most fervent defenders.
(I am not a lawyer, and in this post I am not delving into the substance of the dispute between Stevens and Scalia on the language of the DTA in the Hamdan decision, which I hope to address later. If I have made any factual errors, I would welcome corrections. Thoughtful comments are welcome, as always.)