The mistaken defense of Sens. Kyl and Graham.

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.

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.

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.

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.