The mistaken defense of Sens. Kyl and Graham.

The mistaken defense of Sens. Kyl and Graham.

The mistaken defense of Sens. Kyl and Graham.

The law, lawyers, and the court.
July 26 2006 4:42 PM

Hamdan Hoax, Part 3

The mistaken defense of Sens. Kyl and Graham.

Sen. Jon Kyl. Click image to expand.
Sen. Jon Kyl

Yesterday, the National Review Online's Ramesh Ponnuru accused Supreme Court Justice John Paul Stevens of making "simple factual mistakes" in Hamdan v. Rumsfeld, the ruling that scuttled the Bush administration's unworthy efforts to try the Guantanamo Bay detainees it has charged with war crimes. Stevens'majority opinion chided Sens. Lindsey Graham, R-S.C., and John Kyl, R-Ariz., for misrepresenting to the court the role they played in the Senate debate about the Detainee Treatment Act. The legislative history of the law mattered in Hamdan because the justices had to figure out whether the DTA barred them from hearing the case in the first place by stripping the court of jurisdiction over pending habeas corpus appeals by Guantanamo detainees.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

It would be very nice for Graham and Kyl—especially Kyl, whose participation in the case has become an issue in his re-election campaign—if Ponnuru was right. But he's not.

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Sen. Carl Levin, D-Mich., co-sponsored the DTA with Kyl and Graham to replace a worse version of the law that the Senate passed in November. Levin said repeatedly and publicly in the weeks leading up to the DTA's passage on Dec. 21 that the measure did not affect Hamdan or the hundreds of other Guantanamo cases already pending in the lower courts. Levin said so in the Senate on Nov. 14 when he introduced the DTA—with Graham—and again in a Dec. 16 press release. Other members of Congress lined up behind Levin's reading of the law. Minority Senate Leader Harry Reid's remarks to that effect show up in the Congressional Record on Nov. 15. Sen. John Kerry hand-delivered a letter saying the same thing on Dec. 7. Kerry added, "Senator Levin made that crystal clear in his remarks on the Senate floor."

Levin's view of the law influenced House members who voted for the DTA, too. Rep. Ike Skelton, D-Mo., said on Dec. 18, "as Senator Levin has emphasized, the Graham-Levin amendment provisions do not apply to or alter pending habeas cases." All this legislative history is in a brief that Hamdan's lawyers filed to the Supreme Court (look at Pages 8-11).

Meanwhile, co-sponsors Graham and Kyl stood by—sometimes literally—and said nothing publicly to contradict Levin's characterization of the law. Nothing. Publicly. But as I wrote last month, they "inserted into the record a long colloquy in which they asserted that the DTA scotched Hamdan and everyone else" on Dec. 21, moments before the Senate closed for the winter holidays. My piece continues:

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.

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This is what distressed Justice Stevens. In ruling that the DTA didn't affect Hamdan, he explained that Congress had deliberately omitted a provision that would have expressly stripped the court's jurisdiction—a provision that was part of the November version of the law that the DTA replaced. Stevens cited Levin's congressional testimony. And then he wrote, "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."

NRO's Ponnuru quotes this passage and then retorts, "But Stevens has it wrong. None of the statements he cites—on either side of the issue—was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act)." Ponnuru blames Stevens' "error" on a "false tale" told by Hamdan's lawyers. He cites a C-SPAN tape of the Senate debate and says that none of the Democratic testimony cited by Stevens or the lawyers appears on the tape.

Wrong. While it's true that the Democrats don't show up talking about Hamdan on a C-SPAN tape of the four-minute debate that preceded the DTA's passage on Dec. 21, that's because the key statements cited by Stevens and in Hamdan's brief were made weeks earlier. It's also true that other Democrats inserted statements into the record on Dec. 21 to show their support for Levin's understanding of the law. But Hamdan's lawyers didn't try to pass off those statements as live, taking care to refer to them as "comments placed in the Congressional Record."

Contrast that with what Graham and Kyl told the court. They criticized the Hamdan lawyers for saying their colloquy wasn't live, asserting "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet … or are underlined" [their italics]. As I wrote, this is entirely misleading. But Ponnuru omits Graham and Kyl's obfuscation. He wants to make this an argument over whether or not the two senators inserted testimony into the Record, which in itself is business as usual at the Senate. On the campaign trail, Kyl has also been mounting this "everyone does it" defense.

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But let's not lose sight of the serious issues here. Kyl and Graham kept quiet about their views on a law they were sponsoring until the very last irrelevant minute. And they submitted a brief to the Supreme Court suggesting falsely that their testimony was live and implying that their views were public when they weren't.

The debate over the legislative history of the DTA is not academic. When a law's meaning isn't clear, courts turn to legislative history because it's all they've got to go by. Courts have to trust that members of Congress won't mislead them about that history when they submit legal briefs. In fact, courts have to trust that members of Congress won't mislead them, period.

What of Ponnuru's charge that Stevens erred by saying that Graham and Kyl's colloquy was inserted "after the Senate debate"? The colloquy appears to have been placed in the record before debate formally closed. But that hardly matters, because the views that Graham and Kyl expressed in it could not possibly have influenced the understanding of any of the members of Congress who voted for the DTA. The floor of the Senate was practically empty on the night of Dec. 21. The real voting had already taken place. All that was left was formality. That's why in the colloquy, Kyl himself referred to the "now completed" DTA. As the senators said in their own brief, this language "reflects Senator Kyl's understanding that the Act's drafting and the related fine-tuning had been completed and the bill was ready to be enacted."

As lawyers, Kyl and Graham are officers of the court, with a duty to be utterly truthful with all judges, always. Every law student learns to take this duty to heart. Maybe the senators never read the brief that was submitted on their behalf. But now, when it's been clear for months that the brief didn't play straight, Kyl and Graham should no longer be trying to pretend that it contains nothing unusual or untoward. It's time for them to remember that they have a duty to the court. And for the rest of us to ask whether they violated it.

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Addendum, July 28, 2006: Ramesh Ponnuru takes umbrage at my piece, responding in the wee hours this morning. Sigh. I guess the idea is to confuse the issue as much as possible. What I wrote stands. Four additional points:

1) Beginning on Nov. 14, Sen. Levin and other Democrats were clear and public about their views that the DTA did not affect the courts' jurisdiction over Hamdan and the other Guantanamo cases. Hamdan's lawyers quoted all of that—but Ponnuru selectively reads their brief to omit it. Meanwhile, Sens. Kyl and Graham stood by silently, letting momentum build for their bill based on Levin's interpretation. That is why Justice Stevens deemed the legislative history one-sided and called out Kyl and Graham for their last-minute shenanigans. None of the other justices—including Scalia, who vociferously disputed the majority's decision to maintain jurisdiction over Hamdan—defended Kyl and Graham or made any use of their Dec. 21 colloquy.

2) Ponnuru selectively quotes Stevens to make it appear he only referred to Senate testimony from Dec. 21. If you read the whole passage (footnote 10), you'll see that the justice also cites Levin's statements from Nov. 14 and 15. Ponnuru says those statements don't say what they clearly do; I don't know how to respond to this misreading, other than to refer you to Levin's languageonce again. His statement, "For instance, the Supreme Court jurisdiction in Hamdan is not affected," from Nov. 14 seems pretty clear to me.

3) Ponnuru makes a whole bunch of new errors in his new piece. One example: He claims that only tiny changes were made to the DTA between Nov. 10th (Graham's original version) and the 15th (the Levin co-sponsored version). Uh, yeah, if you consider the deletion of the clause that stripped the courts of habeas jurisdiction "tiny." (Here's the deleted clause:  "DATE.—The amendment made by paragraph (1) [the jurisdiction-stripping provision] shall apply to any application or other action that is pending on or after the date of the enactment of this Act.")  The deletion of that clause, of course, is the main basis of the Supreme Court majority ruling on the DTA, which follows the argument made by Hamdan's lawyers.

4) Ponnuru's attack on Hamdan's lawyers boils down to this—they used italics! Shocking, really shocking. It makes me sad to see these lawyers smeared, however inaccurately, given the role they played in helping to preserve us from the Bush administration's trampling of basic rights and grab for executive power. The lawyers were forthright. Kyl and Graham were the opposite. And now, I'm ready for vacation—isn't it August already?