Posted by Jonathan Adler:
Debating the DTA Debate:
http://volokh.com/archives/archive_2006_07_23-2006_07_29.shtml#1154098349
Last March, Emily Bazelon wrote a [1]Slate column accusing Senators
Jon Kyl (R-AZ) and Lindsay Graham (R-SC) of misleading the Supreme
Court in their amicus brief discussing the legislative history of the
Detainee Treatment Act. The Kyl-Graham brief relied, in part, on a
colloquoy that was inserted into the Congressional Record rather than
delivered on the floor during an actual Senate debate.
The problem is that Kyl and Graham's colloquy didn't actually
happen on Dec. 21. It was inserted into the Congressional Record
just before the law passed, which means that the colloquy did not
alert other members of Congress to the views it contains. 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. The colloquy is evidence of what Kyl and
Graham thought about the meaning of the DTA. But it doesn't show
that any other member of Congress shared their understanding.
Everything else in the record that directly addresses whether the
DTA forces the Supreme Court to toss Hamdan comes from Levin or
another Democrat�and explicitly states that the DTA leaves Hamdan
alone.
Justice John Paul Stevens majority opinion in Hamdan subsequently
picked up on the discrepancy (which was also noted in Hamdan's
briefs), as [2]Bazelon reported here.
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'.
On Monday, Ramesh Ponnuru suggested in NRO that the charges against
Kyl and Graham were much ado about nothing, and that Justice Stevens
himself misrepresented the legislative history of the DTA because the
statements upon which he relied in his opinion were also inserted into
the record rather than delivered during live Senate debate.
Stevens handles the problem in footnote 10. The statements by Kyl
and Graham, he writes, �appear to have been inserted into the
Congressional Record after the Senate debate. . . . All statements
made during the debate itself support Senator Levin�s
understanding� (emphasis in original).
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). Compare the cited passages of the
Congressional Record to the CSPAN videotape of the floor debate,
and it is clear that Levin�s statement and the other statements
supporting his position were inserted after the fact, just as Kyl
and Graham�s statements were.
The issue did not end there, however. Yesterday, Emily Bazelon
published [3]this response to Ponnuru on Slate.
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."
This morning, Ponnuru published [4]this retort on NRO, defending his
on central claim.
She concedes that Hamdan�s lawyers were wrong to claim that the
Kyl-Graham colloquy was inserted into the record after the act had
passed. She concedes as well that the Democrats� Dec. 21 statements
were inserted after the debate but before the act passed, just like
the Kyl-Graham colloquy. But, she writes, �that�s because the key
statements cited by Stevens and in Hamdan�s brief were made weeks
earlier� (emphasis hers). She�s wrong. Here�s what Justice Stevens
writes after trashing Kyl and Graham: �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).� Every passage he cites is from the
record for Dec. 21, and each was inserted after the debate. There�s
just no way to defend Stevens�s distinction between those passages
and the Kyl-Graham colloquy, which was inserted at the same time.
To be continued?
References
1. http://www.slate.com/id/2138750/
2. http://www.slate.com/id/2144780/
3. http://www.slate.com/id/2146540/
4.
http://article.nationalreview.com/?q=ZDAxOTBjZmYwYmM4NGEwMDQ2MDliYWRiY2U4NTk2ZjU=
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