Ramesh Ponnuru misses the point in his July 25 and July 28 essays on Justice John Paul Stevens’s treatment of legislative history in his opinion for the Supreme Court in Hamdan v. Rumsfeld. Justice Stevens discounted the Kyl-Graham colloquy not because it was inserted into the Congressional Record as prepared text, rather than delivered live on the Senate floor, but because it was inserted into the record too late to shed light on whether Congress intended the Detainee Treatment Act to apply retroactively to Guantanamo cases, including Hamdan’s, that were filed before the Act was passed.
The Kyl-Graham colloquy was the only indication in the Congressional Record that Congress intended the Act to apply to already-filed cases. All of the other indications — and there are many — were to the contrary. But unlike the Kyl-Graham colloquy, which apparently was inserted into the Congressional Record just seconds before the final Senate vote, many of the other statements were made part of the record a month earlier and were widely known. That’s why Justice Stevens gave those statements weight but discounted the Kyl-Graham colloquy.
What makes the colloquy infamous is not that it was inserted into the record as prepared text, but that the Justice Department and Kyl-Graham briefs misrepresented the colloquy to the Supreme Court as having been delivered live. This deception was necessary if the Court was to give the colloquy any weight as evidence that Congress intended the Detainee Treatment Act to apply to already-filed cases. For example, the Kyl-Graham brief instructed the Supreme Court that statements inserted into the Congressional Record, rather than delivered live, are identified as such. The Kyl-Graham colloquy was not so identified. Ergo, the colloquy was delivered live. This in the brief for the purported “participants” in the colloquy! And not just the conclusion was false — so was its major premise: The Senate generally does not identify inserted material in the manner described by the brief. Similarly, citing the colloquy, the Justice Department stated that Senators Kyl and Graham “made their views known” that the Act applied to already-filed cases, and that “Congress was aware” of their views, before the final vote. That could have been true only if the colloquy had been delivered live. The Justice Department brief was deceptive in other ways as well. For example, it presented statements by Senators Kyl and Graham as supporting the government’s retroactivity argument, when in fact the statements said nothing about retroactivity. It presented observations by Senator Durbin about the original Graham amendment, which by its terms applied to already-filed cases, as observations about the Graham-Kyl-Levin substitute, which did not. Finally, it attributed to Senator Leahy statements in a letter from law school deans. The Kyl-Graham brief contained similar deceptions. Mr. Ponnuru’s “everybody does it” defense does not hold up because the “it” is not inserting prepared text into the Congressional Record but misleading courts into believing that inserted text was delivered live. It was not Hamdan’s lawyers, but the Justice Department and the Kyl-Graham brief, that sought to “dupe” the Court — by misrepresenting the Kyl-Graham colloquy as having been delivered live. Fortunately, the Court was not deceived. I am conversant with this matter because I filed amicus briefs in the Supreme Court supporting Hamdan’s position and helped coordinate other amici filing briefs supporting his position. I would be glad to share with anyone who asks the deceptive portions of the Justice Department and Kyl-Graham briefs described in this letter.
David Remes
Washington, D.C.
Ramesh Ponnuru responds:
I’ve already responded to most of these points — either in the articles to which Remes links, or in this follow-up or this one.
Remes’s explanation of why Justice Stevens discounted the Kyl-Graham colloquy can’t be reconciled with the justice’s own words. Stevens discounted that colloquy because it was inserted into the record after the debate, in contrast to a bunch of contrary statements that were allegedly made “during the debate.” Those contrary statements were, in fact, inserted after the debate but before the vote, just like the Kyl-Graham colloquy. Stevens’s defenders should stop trying to dance around this point and admit that he was wrong.
Remes next asserts that “[t]he Kyl-Graham colloquy was the only indication in the Congressional Record that Congress intended the Act to apply to already-filed cases. All of the other indications — and there are many — were to the contrary.”
Actually, there were plenty of indications that Congress agreed with Kyl and Graham. One rather big indication was the actual language the act used, which had always in the past been understood to affect pending as well as future cases. Senator Arlen Specter’s comments, delivered live on the floor right before the amendment passed, were another indication.
Remes faults the Justice Department for citing various November statements from Graham, Kyl, and Dick Durbin as indicating that Congress understood the DTA to affect pending cases. I’ve already explained why Durbin’s remarks can reasonably be read that way. (See here, third paragraph from the bottom.) Remes claims that Graham “said nothing about retroactivity” on Nov. 14 and 15 of last year. Justice Scalia thought otherwise, and Justice Stevens doesn’t really contest his claim.
I’ve addressed the claim that the Kyl-Graham brief misrepresented the colloquy.
Remes’s attack on the Justice Department as “deceptive” is particularly unfair. His beef appears to be with Justice’s citation of Graham’s Nov. 14 and 15 statements and its citation of Kyl’s Dec. 21 statement. The Graham citation was deceptive only if Remes is incontestably right about those statements — and he’s wrong. The Kyl citation was also accurate. Justice claimed that Kyl expressed his views before the act was “enacted,” which is true: The statements were inserted into the record before the Senate acted on the Defense Authorization bill that included the Detainee Treatment Act, and nine days before the president signed the bill into law.
Remes argues that the fundamental issue is whether anyone was “misleading courts into believing that inserted text was delivered live.” If that is the issue, then Remes should be more upset about the actions of his allies in the detainee litigation than about those of Graham, Kyl, or Justice. Justice, for example, didn’t rest its case on legislative history. It regarded that history as less important than the actual law that Congress passed and the president signed. Its claim that Hamdan’s lawyers got the history wrong was just icing.
Hamdan’s lawyers and allies, on the other hand, had to rely heavily on legislative history to trump the law’s text. But the legislative history was equivocal. So they urged the Court to discount the inconvenient bits of that history based on the false assertion that those bits were inserted after the final vote. Meanwhile they urged the Court to pay attention to convenient statements that were inserted at the very same time. The Court fell for it. (In determining who may have been trying, or trying harder, to mislead the Court, perhaps we should look at who succeeded.)
The charade hasn’t ended. The detainee lawyers have just filed briefs in the D.C. Circuit’s Al Odah case. Page 5 of the brief for Lakhdar Boumediene says that the Court, in Hamdan, “rejected the Government’s reliance on post-debate statements of Senators Graham and Kyl, instead giving weight to Senator Levin’s view that ‘the final version of the Act preserved jurisdiction over pending habeas cases.’” That final quote within the quote is Stevens’s characterization of Levin’s remarks on December 21, which were equally “post-debate.” Even today, the lawyers for the detainees are still using their fraudulent distinction to support their preferred interpretation of the DTA.
