A justice gets duped.
By Ramesh Ponnuru
Everyone knows that Hamdan v. Rumsfeld was the blockbuster case of the latest Supreme Court term. What everyone doesnít know ó even most of the decisionís critics ó is that Justice John Paul Stevensís majority opinion in the case is partly based on simple factual mistakes.
Hamdan concerned the treatment of detainees in the war on terrorism. To reach a judgment, the Court had to decide first whether Congress, when it passed the Detainee Treatment Act of 2005, had removed the case from the Courtís jurisdiction. To be precise, the Court had to determine whether a Graham-Kyl amendment to the act limiting the Courtís jurisdiction applied to pending cases (such as Hamdan) as well as future ones.
In deciding how to read the amendment, Justice Stevens, writing for the Court, looked at senatorsí statements, among other things. Here he encountered a problem: The senators disagreed. Senators Lindsey Graham and Jon Kyl, the Republican authors of the amendment, thought that it applied to pending cases. Other senators, notably Democrat Carl Levin, did not.
Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, ďappear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levinís understandingĒ (emphasis in original).
But Stevens has it wrong. None of the statements he cites ó on either side of the issue ó 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 Levinís statement and the other statements supporting his position were inserted after the fact, just as Kyl and Grahamís statements were.
Two briefs to the Supreme Court from Hamdanís lawyers appear to have been the source of Stevensís misinformation. (Stevens cites one of the briefs in the footnote.) The lawyers tell an elaborate version of this false tale. They take Levinís statements to have occurred in real time. They even quote Senator Harry Reidís remarks agreeing with Levin to support the claim that ď[e]vidence of reliance on Senator Levinís statement was immediate.Ē But Reidís statement, too, was inserted into the record after the debate. It does not appear on the videotape.
Hamdanís lawyers whack at the statements by Senators Kyl and Graham: ďThat legislative history is entirely post hoc, consisting of a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation passed. . . . Senator Kylís post-hoc colloquy . . . is simply an effort to achieve after passage of the Act precisely what he failed to achieve in the legislative processĒ (emphases in original).
Hamdanís lawyers have their facts wrong. Senator Grahamís office insists that the colloquy was inserted into the record after the debate but before the legislation passed. The lawyersí evidence that the colloquy was inserted after the legislation passed consists entirely of the fact that in the colloquy Senator Kyl refers to the legislation as ďnow completed.Ē Thatís all the evidence Stevens cites, too. Itís flimsy. Kyl probably meant only that the language of the bill had been finalized, not that it had been enacted into law.
The Kyl-Graham statements were inserted after the debate but before the vote ó which was also the case for every Democratic statement that Hamdanís lawyers cited on their side of the argument. For example: Hamdanís lawyers cite statements by Senators Leahy, Durbin, Kennedy, Kerry, Reid, and Feingold from the same dayís record, none of which is on the videotape of the actual Senate proceedings of that day (Dec. 21). There was no debate over either the Kyl-Graham amendment or the Detainee Treatment Act on that day, just a vote. The truth is that there never was much floor debate at any time about whether the act applied to pending or only to future cases.
Kyl was no more trying to manufacture a fake legislative history than Levin was. While Hamdanís lawyers may have made innocent mistakes here, it is their own one-sided version of the legislative history that is clearly false. It misled Justice Stevens, and it has misled such commentators as John Dean and Emily Bazelon. (It must be said that none of these people seem to have put up much resistance to being misled.)
Legislators routinely insert speeches into the Congressional Record, and they routinely do so in order to influence judges. The manipulability of legislative history by legislators and judges is notorious, and it is one of the reasons Justice Antonin Scalia gives for not basing judicial decisions on legislative history. (He argued that the text of the law was on Kyl and Grahamís side.) After Hamdan, Scalia has more evidence to support his skepticism.