Sen. Levin said in the Senate on Nov. 14:

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.

And here are portions of a statement he made in February about the legislative history of the DTA and Graham and Kyl's silence:

The original Graham amendment specified that all provisions—including the restrictions on habeas petitions—applied to pending cases. On November 10, 2005, the original Graham amendment was debated and adopted by the Senate by a vote of 49-42. At that time, I objected to the Graham amendment's provision stripping jurisdiction in pending cases. In fact, I explicitly urged that we not adopt this amendment, in part, because "It would eliminate the jurisdiction already accepted by the Supreme Court in Hamdan." 151 Cong. Rec. S12,663-64.

Because of my concerns, after the original Graham amendment was adopted, I began working on a revised version of the amendment, which became known as the Graham-Levin amendment. This new version removed the language applying the habeas restrictions to pending cases, and instead limited its retroactive effect only to the standards applicable to direct appeals of final determinations that may have been made by CSRTs or military commissions.

On November 14, 2005, Senator Graham and I introduced this new version to the Senate together. In introducing the new Graham-Levin amendment, Senator Graham did not specifically address the issue of the amendment's effect on pending cases before yielding the floor to me. I did address the issue. In particular, I explained to the Senate that one of the principal reasons that so many of us voted against the prior version of the amendment was its effect on pending cases, and that this problem had been addressed in the Graham-Levin amendment that was then before us.

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Senator Graham took the floor again immediately after I concluded my explanation of what our new amendment accomplished. He did not disagree with my statement about the effect of the revised bill on pending cases anywhere in his remarks. Indeed, neither Senator Graham nor Senator Kyl said anything at that time to contest my very clear statement that the new amendment did not retroactively strip the courts of jurisdiction over pending cases.

When the Senate approved the Graham-Levin Amendment by a vote of 84-14 on November 15, 2005, I explained again that our amendment would not strip the courts of jurisdiction over pending cases: "The Graham-Levin-Kyl amendment would not apply the habeas prohibition in paragraph (1) to pending cases. So, although the amendment would change the substantive law applicable to pending cases, it would not strip the courts of jurisdiction to hear them. Under the Graham-Levin-Kyl amendment, the habeas prohibition would take effect on the date of enactment of the legislation. Thus, this prohibition would apply only to new habeas cases filed after the date of enactment. The approach in this amendment preserves comity between the judiciary and legislative branches. It avoids repeating the unfortunate precedent in Ex parte McCardle, in which Congress intervened to strip the Supreme Court of jurisdiction over a case which was pending before that Court."

151 Cong. Rec. S12,802. Again, neither Senator Graham nor Senator Kyl offered a contrary interpretation of the Graham-Levin amendment at that time.

The bill then went to a House-Senate conference. At this time, the inapplicability of the jurisdiction-stripping provision to pending cases was so clear that the Administration's allies in the House tried in vain to alter the language of the effective date provision to make the jurisdiction-stripping provision apply retroactively to pending cases, as it had in the original Graham amendment. I objected to this language and it was rejected by the Senate conferees.

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It was not until after we concluded the conference and the conference report passed the Senate on December 21, 2005 that Senator Kyl placed a colloquy in the Congressional Record arguing that Section 1005 should be interpreted to retroactively strip the courts of jurisdiction over pending cases. At the same time, a number of other Senators placed statements in the Congressional Record stating their belief that the provision would not strip the courts of jurisdiction over pending cases.

Those statements, coming as they did after the conclusion of the conference and final action on the bill in both the House and the Senate, carry no more weight as legislative history than the statement that Senator Kyl placed in the Congressional Record last week or any other after-the-fact statement in the Congressional Record. Both the contemporaneous legislative history and the language and structure of the Graham-Levin amendment itself demonstrate that this provision was not intended to, and did not, retroactively strip the federal courts of jurisdiction over pending cases.