The Obfuscation Report

Last week, the Supreme Court issued its historic decision in Hamdan v. Rumsfeld. There, it dealt a substantial blow to the Bush/Cheney Administration's plans for the treatment of detainees at Guantanamo and, potentially, elsewhere as well - ruling out, for instance, the option of using military commissions without due process to try detainees.

The decision itself has been widely discussed. Less widely discussed, however, has been its backstory.

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.

To understand their ruse, a bit of background information about both the Hamdan case and the Detainee Treatment Act is necessary.

The Chronology Of The Hamdan Case

Salim Ahmed Hamdan is undoubtedly a bad fellow. Indeed, he is claimed to have once served as Osama bin Laden's driver and bodyguard. Hamdan was captured by tribal forces and turned over to the U.S. Military in November 2001, during the hostilities in Afghanistan against the Taliban. In June 2002, Hamdan was sent to Guantanamo.

In July 2003, the President designated Hamdan for trial by military commission, and in December 2003, Hamdan was given military counsel. In February 2004, Hamdan's attorneys filed an action under the Uniform Code of Military Justice (UCMJ) asking that formal charges be made against Hamdan, and that he be given a speedy trial. The U.S. military, however, held that the UCMJ did not apply.

Next Hamdan's attorney filed a petition for habeas corpus in federal court, to test the legality of his detention. That petition made its way from the state of Washington, where it was filed, to Washington, DC.

On November 8, 2004, Judge James Robertson of the U.S. District Court for the District of Columbia (a Clinton appointee, who had been active in civil rights) ruled that both the UCMJ and Common Article 3 of the Geneva Conventions were applicable, so he stayed the proceedings of the military commission that had taken jurisdiction of Hamdan. The government appealed immediately to the U.S. Court of Appeals for the District of Columbia. There, on July 15, 2005, a three-judge panel (which included the future Chief Justice John Roberts) ruled in the government's favor. But Hamdan's attorney filed a petition for review by the U.S. Supreme Court. And the Court took the case on November 7, 2004.

Subsequently, Congress passed the Detainee Treatment Act (DTA), and on December 30, 2005, President Bush signed it. Then, on February 13, 2006, the government filed an extraordinary motion before the Supreme Court, calling for the Court to dismiss Hamdan's case on the ground that the DTA had stripped the High Court of jurisdiction of any and all habeas corpus actions emanating from the detainees at Guantanamo.

In support of the government's motion, Senators Kyl and Graham filed an amicus brief. There, they brazenly attempted to hoodwink the Court regarding the actions of Congress in adopting the DTA. (It is not clear if their attorney, Jeffrey Lamken, a distinguished and highly able appellate practitioner, was privy to their scheme. But I would be at a loss to explain how he might have missed it.)

The Passage of the Detainee Treatment Act

Readers may recall that, after the Abu Ghraib scandal and related revelations became public, Senator John McCain sponsored provisions of law geared specifically to prevent the use of torture by the Bush/Cheney Administration, as well as those that follow. Those provisions, along with others, constitute the DTA. The other provisions were championed by Senators Graham and Kyl, who sought to nullify the Supreme Court's ruling in Rasul v. Bush. In that June 28, 2004 ruling, the High Court held that federal courts - contrary to the government's claim - do indeed have jurisdiction over Guantanamo's military prisons.

Following Rasul, virtually all the detainees at Guantanamo filed habeas corpus actions. On the morning of Thursday, November 10, 2005, the government filed a motion in the U.S. District Court for the District of Columbia to put on hold many of these pending actions - as many as 160, if not more - until all the procedural issues could be resolved by the cases already on appeal.

That same Thursday, in the afternoon, as the Senate was rushing to leave town for the Veterans Day holiday, Senator Graham proposed an amendment (to an Defense Department authorization bill) that would deny detainees at Guantanamo the right to file habeas actions in federal courts, and strip the federal courts, including the Supreme Court, of jurisdiction over all the cases then pending, including the Hamdan case.

The thrust of Senator Graham's argument was that he wanted to reverse the Supreme Court's ruling in Rasul. "Habeas corpus rights have been given to Guantanamo Bay detainees because the location is under control of the United States," Graham observed. He then incorrectly told his colleagues, time and again, that the United States had never before given aliens, enemy combatants, and prisoners of war the right to file a habeas corpus action. "Never in the history of the law of armed conflict has an enemy combatant, irregular component, or POW been given access to civilian court systems to question military authority and control, except here," Graham protested.

In fact, the U.S. Supreme Court had considered just such habeas petitions during and relating to World War II in Ex parte Quirin and In re Yamashita.

Graham's proposal caught the Senate by surprise. It is not the Senate's practice to address complex issues willy-nilly. (These are the kinds of ploys played in the House of Representatives, where Graham started his political career.) Accordingly, Republican Senator Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, told his colleagues that until his committee had held hearings on the matter, he was "not prepared, at this stage, to support legislation which calls for removal of habeas corpus." Senator Specter believed the matter "require[d] a lot more analysis." Similarly, Democratic Senator Jeffrey Bingaman of New Mexico, one of the more able attorneys in the Senate (a Stanford Law graduate and former Attorney General of New Mexico), objected. As the debate proceeded, Senator Bingaman did eventually call Graham on his misleading claim about federal courts and habeas actions.

Another of the Senate's better lawyers, Democratic Senator Carl Levin of Michigan -- who agreed that some restrictions should be placed on putative terrorists being given open access to federal courts -- noted, however, that Graham's proposed amendments would strip the federal courts of jurisdiction over habeas petitions that had already been filed. The relevant provision's Effective Date clause made clear, after all, that it would "apply to any application or other actions that is pending on or after the enactment of this Act." "[The Act] would eliminate the jurisdiction already accepted by the Supreme Court in Hamdan," Levin pointed out, and he objected to that consequence.

Nonetheless, that same pre-holiday Thursday afternoon, the Republican leadership forced a vote on Graham's Amendment, which had its blessing - and surely that of the Administration. It passed, and was made part of the Defense Authorizations Act for Fiscal Year 2006, by a vote of 49 to 42.

Amending the Graham and Kyl's Jurisdiction-Stripping Provisions

Over the long holiday weekend, Senator Levin and others advised Graham that they were going to seek to amend his provision. Graham, always congenial with his colleagues, agreed to work with Levin, and they fashioned revised language.

On November 14, the Senate debated the revised amendment. "Last week, when Senator Levin was arguing with me about my amendment, I think he made some very good points," Senator Graham explained during the debate. "By working with him, … and Senator Kyl, we have addressed some of the weaknesses in my original amendment," Graham said.

Senator Levin provided further explanation for the record: "The … 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 [new] amendment, we have said that … the amendment will not strip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected."

The change had been accomplished by redrafting the Effective Date clause to eliminate habeas corpus actions. Senator Levin summarized the change this way: "The habeas prohibition in the [original] Graham amendment applied retroactively to all pending cases -- this would have the effect of stripping the Federal courts, including the Supreme Court, of jurisdiction over all pending cases, including the Hamdan case. The [new] Graham-Levin-Kyl amendment would not apply the habeas prohibition … 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 revised Graham-Levin-Kyl amendment passed 84 to 14.

Graham and Kyl's Ghosted Legislative History

Given the fact the Administration was fighting tooth and nail to defeat Senator McCain's prohibitions against torture, which were also part of this legislation, it did not exactly sail through the House of Representatives. While there was some effort in the House to change the language relating to habeas actions, that effort failed, and the provisions as agreed upon in the Senate remained.

When the conference report came back to the Senate on December 21, 2005, the Congressional Record reported a lengthy colloquy between Senators Graham and Kyl, briefly joined by Senator Brownback. (This extended dialogue runs some 12,000 words.) In this discussion of the meaning of the legislation, Graham and Kyl make several startling statements -- none more so than those that concerned the jurisdiction of federal courts over pending habeas petitions.

"So once this bill is signed into law, you anticipate that the Supreme Court will determine whether to maintain their grant of certiorari [in the Hamdan case]?" Graham asked Kyl. Kyl answered, "Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. . . . I think that a majority of the court would do the right thing--to send Hamdan back to the military commission." (Emphasis added.)

In other words, after previously insisting - and to address Senator Levin's very specific concern on this score - that the revised language would in no way strip the Supreme Court's jurisdiction over Hamdan, Kyl was now maintaining exactly the opposite, with Graham's full cooperation.

Kyl continued, "As for legislative history" -- which he and Graham, his reference implied, were clearly making right then on the floor of the Senate -- "I think it usually is regarded as an element of the canons of [statutory] construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write." (Ironically, one reason Scalia disregards legislative history appears to be that he is well aware that Senators have been known to distort it.)

Those viewing C-Span's coverage of the Senate, and the Senators on the floor of the Senate, never heard this part, or any of the rest of, this lengthy colloquy between Graham and Kyl. That's because it never happened. No doubt aides of the Senators wrote this bogus and protracted dialogue, and either Graham or Kyl had it inserted in the record.

I first became aware of it when Emily Bazelon, a senior editor at Slate, wrote about it, after she confirmed the colloquy had never happened. As she noted, inserting comments into the Congressional Record is "standard practice." But what is "utterly nonstandard is implying to the Supreme Court" that Senate debate was live, when it most certainly was not. "When a senator wants to put a statement into the record," Bazelon noted, "he or she signs it, and writes 'live' on it, and, with the routine consent of the rest of the body, into the record it goes." This fact was not revealed by Graham and Kyl in their brief, however.

The Graham-Kyl Amicus Brief in Hamdan

In February 2006, Senators Graham and Kyl filed their amicus brief in the Hamdan case, supporting the Government's motion to dismiss the case for lack of jurisdiction under the Detainee Treatment Act (DTA). If they had been keeping faith with Senator Levin and the rest of their colleagues, they should have filed a brief on precisely the other side - making clear that the DTA, as amended, had had no intention to touch the Supreme Court's pending Hamdan case, and thus opposing the government's motion!

Instead, Graham and Kyl advised the Court they were sponsors of the Graham-Levin-Kyl amendment, and throughout their brief, cited their fictitious colloquy on December 21, 2005. Indeed, that colloquy is the core of their brief and its argument as to why the Court should dismiss the Hamdan case. Their hubris reaches the point of deception when they claim that the "legislative history confirms that Congress intended all pending claims to be governed by the DTA."

"In an extensive colloquy (which appears in the Congressional Record prior to the Senate's adoption of the Conference Report), Senators Graham and Kyl made it clear that the statute 'extinguish[es] one type of action - all of the actions now in the courts - and create[s] in their place a very limited judicial review of certain military administrative decisions." (This misleading statement is cited again later in the brief.)

Absent this bogus colloquy, in which the brief quotes Senator Graham as saying "I want our colleagues to know exactly what they will be agreeing to," there was actually no dispute throughout the deliberation of the Graham-Levin-Kyl language in the House or Senate as to the fact that the DTA would not retroactively remove the jurisdiction of the federal courts over pending cases. Indeed, it is unlikely any of Graham and Kyl's colleagues were aware of this dispute, which was manufactured after the fact.

Remarkably, the government's brief, too, relied on the same sham exchange when seeking dismissal of the Hamdan case.

The Hoax Fails: The Supreme Court Is Not Fooled

Hamdan's lawyers, however, spotted the hoax. In their opposition to the motion to dismiss the case, they advised the Court that the supposedly conflicting legislative history was entirely invented after the fact, and that it consisted of "a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation had passed." The brief noted, quite accurately, that this Graham-Kyl colloquy was "simply an effort to achieve after passage of the Act precisely what [they] failed to achieve in the legislative process."

Ultimately, the Supreme Court did not decide the jurisdictional issue until it rendered its full ruling on June 29 of this year. There, Justice Stevens concluded correctly that the Congress had not stripped the Court of jurisdiction with the DTA.

Out of an apparent concern for interbranch comity, the High Court has chosen to ignore the bogus brief filed by Senators Graham and Kyl, rather than reprimanding the Senators. Nevertheless, when Graham and Kyl sought to file the very same brief, a month later, with the U.S. Court of Appeals for the District of Columba, Slate's Emily Bazelon reports that court "issued an unusual order rejecting" their amicus brief alone, although they accepted five others.

No one familiar with this remarkable behavior by Graham and Kyl can doubt why the court did not want to hear from these senators.