The Supreme Court busts two senators.

The law, lawyers, and the court.
June 29 2006 3:12 PM

Not Live From Capitol Hill

The Supreme Court busts Lindsey Graham and John Kyl.

Illustration by Robert Neubecker. Click image to expand.

The headline at the Supreme Court today —as it should be—is the resounding ruling that President Bush's rights-skimping military tribunals are illegal under military law and the Geneva Conventions. But before reaching that conclusion, five justices had to rule that they had the power to decide Hamdan v. Rumsfeld, the case challenging the tribunals. That meant wrestling with a December act of Congress that could have had the effect of tossing all the Guantanamo Bay cases out of court. The majority rejected that jurisdiction-stripping interpretation of the law. And along the way, the justices outed two of the law's sponsors, Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz., for trying to manipulate the Congressional Record and the court itself. The justices weren't fooled. And they wanted the senators to know it.

In the weeks leading up to the December passage of the Detainee Treatment Act, a big question was whether Congress would take from the courts the authority to hear pending cases. That included Hamdan and also hundreds of petitions filed by other detainees that are making their way through the lower courts. Sen. Carl Levin, D-Mich., the law's third sponsor, said repeatedly on the floor of the Senate that the DTA did not apply to Hamdan and the other pending cases.

Then on Dec. 21, moments before the Senate closed for the winter holidays, Kyl and Graham inserted into the record a long colloquy in which they asserted that the DTA scotched Hamdan and everyone else. The senators followed up with an amicus brief for the Supreme Court that implied that the testimony was live (as SCOTUSblog and Slate called attention to). The colloquy was scripted to sound that way. It even included a fake "interruption" by Sen. Sam Brownback, R-Kan. In its own brief in Hamdan, the Department of Justice also relied on the colloquy as evidence that Congress passed the DTA intending to block the Guantanamo appeals.

Justice John Paul Stevens, writing today for the majority, found otherwise. He said that the statute wasn't clear. And he cited "evidence of deliberate omission" in its drafting, noting that Congress rejected a version of the relevant provision that would have expressly done what the Bush administration argues the law does.

And then Stevens dropped a little footnote—actually, a not so little one—about the debate over the DTA on the Senate floor. "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 … those statements appear to have been inserted in the Congressional Record after the Senate debate," Stevens wrote. The italics are his. The embarrassment is the senators'.

What's so bad about inserting a statement into the Record as if it were live? It happens all the time, Senate staffers say—you scrawl "live" on a written statement, hand it over, and usually no one is the wiser. (Heads up: The "bullets" in the Congressional Record denoting testimony that's not live are entirely discretionary.) In his dissent, Justice Antonin Scalia scoffs at Stevens for imagining that congressional debate has any meaning whatsoever. The distinction between live and inserted testimony "makes no difference unless one indulges the fantasy that Senate floor speeches are attended (like the Philippics of Demosthenes) by throngs of eager listeners, instead of being delivered (like Demosthenes' practice sessions on the beach) alone into a vast emptiness." I love the Greek history lesson. And Scalia must be right that senators' statements don't necessarily influence the views of other senators. Which makes it hard to say whose remarks really reflect the views of the body as a whole.

But when the text of a statute is ambiguous—and to the despair of courts, that is too often the case—then courts have little choice but to look to floor debate to divine the intent behind a law. Even Scalia, Public Enemy No. 1 of legislative history, uses it here in an effort to rebut Stevens. As long as courts are stuck reading through floor debates, they need to trust that senators aren't misrepresenting themselves. It's one thing to slip your comments into the record. It's another thing to manufacture a colloquy and then imply to the court, in a legal brief, that it was live when it wasn't. Especially when otherwise, there's nothing in the Record to support your position.

That's the twist that prompted Senate historians to say they couldn't remember a manipulation of the Record like the Graham-Kyl dance, when news of it broke. The senators gave a virtuoso performance. It's safe to say they won't be repeating it anytime soon.

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