I’m going to post Emily Bazelon’s
latest entry in our debate (scroll down) in
blue, with my own comments interspersed in black. I’ve also put our initials in front of passages for which we’re responsible.
EB: Addendum, July 28, 2006: Ramesh Ponnuru takes umbrage at my piece, responding in the wee hours this morning. Sigh. I guess the idea is to confuse the issue as much as possible. What I wrote stands. Four additional points:
1) Beginning on Nov. 14, Sen. Levin and other Democrats were clear and public about their views that the DTA did not affect the courts’ jurisdiction over Hamdan and the other Guantanamo cases. Hamdan’s lawyers quoted all of that — but Ponnuru selectively reads their brief to omit it. Meanwhile, Sens. Kyl and Graham stood by silently, letting momentum build for their bill based on Levin’s interpretation.
RP: The final amendment removed jurisdiction over a class of cases. Courts had always previously understood that language to cover pending cases, too. As Justice Scalia noted in dissent, Stevens “cannot cite a
single case in the history of Anglo-American law (before today) in which a jurisdiction-stripping provision was denied immediate effect in pending cases, absent an explicit statutory reservation.” That’s a pretty strong rule of construction.
Kyl and Graham were aware of that rule of construction, citing in December some of the same cases that Scalia would cite to argue for applying it. The argument that they misled their colleagues assumes that those colleagues (or their aides) were not responsible for reading the text of the legislation.
The notion that Levin’s interpretation built momentum for the legislation is revisionism. As I have noted before, Sen. Durbin’s comments, inserted into the record the day the amendment passed, suggest that he believed that it would prevent the Supreme Court from ruling on the merits of
Hamdan. Bazelon ignores this point.
Sen. Specter, the day the amendment passed, urged his colleagues to vote against it in part because it would remove the Court’s jurisdiction over Hamdan. Justice Stevens waves away this statement, unpersuasively, and Bazelon ignores it.
I didn’t read Hamdan’s lawyers’ briefs to omit anything that they included. I dealt with the senatorial statements to which she refers in my last article. She, on the other hand, doesn’t acknowledge the existence of aspects of the legislative history that don’t help her case.
EB: That is why Justice Stevens deemed the legislative history one-sided and called out Kyl and Graham for their last-minute shenanigans.
RP: Actually, Stevens doesn’t dismiss the colloquy because Kyl and Graham “stood by silently.” He dismissed it because it wasn’t live — while accepting other statements that weren’t live either.
EB: None of the other justices — including Scalia, who vociferously disputed the majority’s decision to maintain jurisdiction over Hamdan — defended Kyl and Graham or made any use of their Dec. 21 colloquy.
RP: It wouldn’t prove anything if Scalia had not used the colloquy: As every observer of the Supreme Court knows, he is famous for not using legislative history. And since he was the only dissenting justice to take up the jurisdictional question — the other dissenters joined his opinion — it doesn’t prove anything that none of the others used it. As it happens, however, Scalia did cite the colloquy, in order to dispute Stevens’s skewed version of the legislative history.
EB: 2) Ponnuru selectively quotes Stevens to make it appear he only referred to Senate testimony from Dec. 21. If you read the whole passage (footnote 10), you’ll see that the justice also cites Levin’s statements from Nov. 14 and 15.
RP: What I wrote was that Stevens referred only to Dec. 21 testimony when illustrating his point about “all statements made during the debate itself.” And I quoted the passage accurately.
EB: Ponnuru says those statements don’t say what they clearly do; I don’t know how to respond to this misreading, other than to refer you to Levin’s language once again. His statement, “For instance, the Supreme Court jurisdiction in Hamdan is not affected,” from Nov. 14 seems pretty clear to me.
RP: Now Bazelon is engaging in some selective quotation of her own. Here’s what Levin said in that Nov. 14 statement: “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.” Levin continues: “What our amendment does, as soon as it is enacted and the enactment is effective, it provides that the standards we set forth in our amendment will be the substantive standards which we would expect would be applied in all cases, including cases which are pending as of the effective date of this amendment.” And one more time: “because it would not strip courts of jurisdiction over these matters where they have taken jurisdiction, it does, again, apply the substantive law and assume that the courts would apply the substantive law if this amendment is agreed to.”
As Sen. Kyl observed for the record on Feb. 9: “Whether the amendment, by barring one type of claim and authorizing another type to take its place, strips the courts of jurisdiction, is, to some extent, a matter of perspective. It is a question of whether the glass is half empty or half full. On the operative issue, however, Senator Levin’s remarks on November 14 are consistent not only with my own and Senator Graham’s characterization of the amendment . . . but also with the interpretation now advanced by the Justice Department: that the current claims can go forward, but only as claims for review under the substantive standards created by the new act.”
In other words: Levin’s Nov. 14 statement is not consistent with his Dec. 21 statement.
His November comments don’t contradict what Kyl and Graham maintained in their brief. If Bazelon, on re-reading, can’t see that, it’s because she doesn’t want to. (Interesting question: Will Bazelon and Hamdan’s lawyers stick to the view that Levin’s Nov. 14 statement controls when it comes to
Al Odah?)
EB: 3) Ponnuru makes a whole bunch of new errors in his new piece. One example: He claims that only tiny changes were made to the DTA between Nov. 10th (Graham’s original version) and the 15th (the Levin co-sponsored version). Uh, yeah, if you consider the deletion of the clause that stripped the courts of habeas jurisdiction “tiny.” (Here’s the deleted clause: “DATE. — The amendment made by paragraph (1) [the jurisdiction-stripping provision] shall apply to any application or other action that is pending on or after the date of the enactment of this Act.”) The deletion of that clause, of course, is the main basis of the Supreme Court majority ruling on the DTA, which follows the argument made by Hamdan’s lawyers.
RP: She says that I made “a whole bunch of new errors,” then offers only one example to prove the point. Sure. That example turns out to be my characterization of the changes made to the Kyl-Graham amendment as “tiny,” which is obviously not the kind of matter that can simply be declared to be erroneous. I think my characterization is right. The deleted clause was replaced by a clause that made the jurisdiction removal effective on the date the law was enacted. That kind of language had always previously been interpreted to apply to pending cases.
EB: 4) Ponnuru’s attack on Hamdan’s lawyers boils down to this — they used italics! Shocking, really shocking.
RP: This is a cheap shot. My “attack” consisted of raising a question about whether they were intentionally misleading when they made a big deal out of the fact that the Kyl-Graham colloquy wasn’t live while not calling any attention to the fact that the a lot of the Senate statements they cited weren’t live either. The italics were one part of this selective game. Bazelon, in her attacks on Graham and Kyl, has seized on less.
EB: It makes me sad to see these lawyers smeared, however inaccurately,
RP: Smeared? I wrote that Hamdan’s lawyers had, innocently or not, misrepresented facts, and thus misled the Supreme Court. The most I said against them (in my second article on this matter) was that some evidence told against their innocence. Bazelon, on the other hand, has consistently hyperventilated about the alleged misconduct of Senators Kyl and Graham and their lawyers, going so far as to claim that the senators violated their duties as lawyers.
EB: given the role they played in helping to preserve us from the Bush administration’s trampling of basic rights and grab for executive power.
RP: It take this as an admission by Bazelon that she can’t separate the questions in dispute between us from her pleasure in the policy results of Hamdan.
EB: The lawyers were forthright. Kyl and Graham were the opposite. And now, I’m ready for vacation — isn’t it August already?
RP: Yeah, I’d call it a day too if I were her. 
