News Intelligence Analysis
This column originally appeared on Findlaw.com
Senators
Kyl and Graham's Hamdan v. Rumsfeld Scam:
The Deceptive Amicus Brief They Filed
in the Guantanamo Detainee Case
By JOHN W. DEAN
Wednesday, Jul. 05, 2006
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.
Send a letter
to the editor
about this Article
Legal Topics and Analysis
Political Philosopy and Analysis Directory
This article is copyrighted material, the use
of which has not been specifically authorized by the copyright
owner. We are making such material available in our efforts to
advance understanding of environmental, political, human rights,
economic, democracy, scientific, and social justice issues, etc.
We believe this constitutes a 'fair use' of any such copyrighted
material as provided for in section 107 of the US Copyright Law.
In accordance with Title 17 U.S.C. Section 107, the material
on this site is distributed without profit to those who have
expressed a prior interest in receiving the included information
for research and educational purposes. For more information go
to: http://www.law.cornell.edu/uscode/17/107.shtml.
If you wish to use copyrighted material from this site for purposes
of your own that go beyond fair use, you must obtain permission
from the copyright owner.