The fictitious Kyl/Graham "floor debate"

(Cross-posted at Unclaimed Territory)

Today the Supreme Court will hear oral arguments in the case of Hamdan v. Rumsfeld. The Court will be called upon to determine--among other things--whether a provision in last year's Detainee Treatment Act ("DTA") effectively strips the Court of jurisdiction to hear Hamdan's case. The Government contends that it does and in support of this position, Republican Senators Lindsey Graham and John Kyl have filed an amicus brief with the Court.

This amicus brief argues that the legislative history of the DTA supports the Government's position. Specifically, the brief cites a lengthy colloquy between Senators Kyl and Graham themselves which purportly took place during a Senate floor debate just prior to passage of the bill. In the exchange, both Kyl and Graham suggest that the bill will strip the courts of jurisdiction over pending detainee cases such as Hamdan. But here's where the story gets interesting.

Apparently this entire 8 page colloquy--which is scripted to read as if it were delivered live on the floor of the Senate, complete with random interruptions from other Senators--never took place. It was inserted into the Congressional Record in written form just prior to passage of the bill.

Lyle Denniston at SCOTUSblog--who appears to have been the first to pick up on this juicy story last Thursday--noted that the authenticity of the floor debate was disputed by Hamdan's attorneys in their reply to the Government's brief. Hamdan's attorneys pointed out that the C-SPAN footage for Dec. 21, 2005--the date this debate supposedly took place--shows no sign of Senators Kyl or Graham (or, for that matter, the other Senators who appear in the record).

Emily Bazelon at Slate--citing "Senate officials"--confirms that the entire colloquy was inserted, not delivered live. Bazelon writes:

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 non-standard is
implying to the Supreme Court that testimony
was live when it wasn't.

But that's exactly what Graham and Kyl appear to have done in their brief. In response to the contention by Hamdan's attorneys that the legislative history is meaningless because it was inserted into the record without debate, the brief states the following:

[T]he Congressional Record is presumed to
reflect live debate except when the statements
therein are followed by a bullet, indicating
"statements or insertions which are not spoken
by a Member of the Senate on the floor," or are
underlined, indicating that they are "words
inserted or appended, rather than spoken, by a
Member of the House on the floor."

And guess what, there's no bullet or underlining in the relevant part of the Congressional Record. The Kyl/Graham amicus brief also quotes various lines from the colloquy as evidence that it took place prior to the passage of the bill. It quotes Sen. Graham as saying: "I want our colleagues to know exactly what they will be agreeing to" (emphasis in original).

Bazelon even catches Senator Brownback's office in an apparent lie. Brownback makes a cameo in the scripted dialogue, asking if he "might interrupt" and ask a question. Bazelon writes:

I called Brownback's office to ask if he'd given
this testimony live on the Senate floor. "Yes,
it was live," an aide told me. I said that I'd
been told otherwise by Senate staffers and
mentioned the C-SPAN tape. "Let me call you
back," the aide said. She never did. Nor did
Kyl or Graham's press reps.

Now I realize that the Congressional Record is often not what it appears to be. Much of it is inserted at the last second. And even when statements are delivered live, there are often no other senators in the chamber. But this particular episode appears to go well beyond the normal charade.

What we have are two Senators falsely suggesting--to the highest court in the land--that an imaginary dialogue inserted in the Congressional Record was in fact a live floor debate which reveals the definitive intent of Congress. If all this is true--and it certainly appears to be--Senators Kyl and Graham have some explaining to do.