THE BLOG
07/09/2006 09:45 pm ET | Updated May 25, 2011

The Kabuki Dance

People were impressed when Sen. Lindsey Graham (R-SC), a former JAG lawyer, previously raised his voice against rights violations against the prisoners at Gitmo, but those principled times are apparently past. John Dean gives us some interesting backstory on last week's Hamdan v. Rumsfeld ruling:

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. [...]

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.) [...]

Dean goes on to explain a lengthy debate in the Congressional Record between Kyl and Graham - which never actually happened.

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.

This was more than a simple PR move, however:

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.

This little Kabuki dance didn't work:

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.

Now this question remains: Who orchestrated this little show?