In a July 18 article, New York Times staff writer Kate Zernike reported that Sen. Lindsey Graham is trying "to resist the White House when it comes to defining the treatment of people accused of being terrorists." But Zernike ignored Graham's controversial efforts to strip habeas corpus rights from the detainees held at Guantánamo Bay -- efforts that included an act of legislative deception that was specifically noted by the Supreme Court majority opinion in the case of Hamdan v. Rumsfeld.
In a July 18 article, New York Times staff writer Kate Zernike profiled Sen. Lindsey Graham (R-SC), focusing on his role in the ongoing congressional debate over the handling of terror suspects. Zernike painted Graham as "the contrarian, the conservative Republican willing to poke a stick in the eye of the White House" and reported that Graham is trying "to resist the White House when it comes to defining the treatment of people accused of being terrorists," particularly in the wake of the Supreme Court's recent ruling in the case of Hamdan v. Rumsfeld striking down the Bush administration's use of military tribunals to try the detainees held at Guantánamo Bay. But Zernike ignored Graham's controversial efforts to strip those detainees of their habeas corpus rights, efforts that included an act of legislative deception specifically noted by the Supreme Court majority opinion in Hamdan.
As evidenced by the headline -- "G.O.P. Senator Resisting Bush Over Detainees" -- Zernike's article largely focused on his disagreements with the White House over how to handle the hundreds of terror suspects currently held at the Pentagon's detention facility at Guantánamo. Indeed, while the Bush administration has urged members of Congress to pass legislation approving the system of military tribunals in the wake of the Hamdan decision -- that the Bush administration could not conduct such trials without congressional approval -- Graham has advocated using the court-martial system instead, which affords the defendants broader rights. Throughout the article, Zernike repeatedly referred to the current tension between Graham and his Republican colleagues, noting that his "position has met resistance from many of his fellow Republicans" and that he is "willing to poke a stick in the eye of the White House." To support her claim, Zernike cited the fact that "[l]ast year, against the wishes of the Bush administration, he was one of the key forces in helping pass a ban on torture" and added that Graham had more recently "raised questions about the judicial nomination of William J. Haynes II, the Pentagon general counsel who helped write a memorandum that narrowly defined torture."
But absent from the Times profile was any mention of the ways in which Graham has aided the White House on the issue of detainee rights. Specifically, Zernike omitted mention of his controversial efforts to strip the prisoners at Guantánamo of their right to challenge their detentions.
On November 10, 2005, as the Senate was debating the Detainee Treatment Act (DTA), Graham proposed an amendment to deny the Guantánamo detainees the right to file habeas corpus petitions in federal court. In the 2004 case Rasul v. Bush, the Supreme Court ruled that federal courts had jurisdiction to hear habeas corpus petitions filed by detainees at Guantánamo. Graham asserted that in Rasul, the Supreme Court ruled that the federal habeas corpus statute "applies to [detainees at Guantánamo] unless Congress says otherwise." He stated that his amendment was an attempt to amend the law to take away the jurisdiction granted in Rasul: "I proudly stand before the Senate asking the Senate to fix this absurd result [in Rasul]. The court in Rasul is asking the Senate and the House, do you intend for al-Qaida terrorists, enemy combatants, to have access to Federal courts under habeas rights to challenge their detention as if they were American citizens? The answer should be, no, we never intended that. That is what my amendment does." Further, the amendment was drafted explicitly to apply retroactively to prevent U.S. courts from hearing the numerous cases pending in the federal system, including Hamdan. The Senate approved the amendment by a vote of 49-42. The White House had reportedly "signaled support for the plan" and its passage was considered a "significant victory for the Bush administration, which has argued that suspected enemy combatants overseas cannot challenge their confinement in U.S. courts," according to The Washington Post.
The measure sparked immediate criticism from many Democrats, legal experts, and civil liberties advocates. Gitanjali Gutierrez, an attorney with the Center for Constitutional Rights declared the measure to be "one of the worst things the Senate has ever done. On the back of a cocktail napkin, they have tossed aside protections of individual liberty that have been in existence for centuries." Former Air Force lawyer Scott Silliman, the executive director of Duke University's Center on Law, Ethics and National Security, called the amendment "momentous" and accused its supporters of "trying to reverse a Supreme Court case of great magnitude and scuttle another one." Three legal experts from Yale University, Harvard University, and New York University law schools circulated a letter opposing the measure, in which they wrote, "The Graham amendment embodies an effort to alter fundamental precepts of our constitutional order. It consigns the protection of fundamental human liberties to unilateral executive determination." Further, Sen. Jeff Bingaman (D-NM) said, "I believe we need to keep in place the rights that have already existed, that currently exist, and that the Supreme Court has recognized. We need to prevent the courts from being stripped of the authority they have and have always had."
Graham subsequently negotiated with Sen. Carl Levin (D-MI) to soften the amendment somewhat and on November 15, 2005, a revised version of the bill passed by a vote of 84-14. One of the major changes was the removal of the retroactivity provision included in the original measure. On the Senate floor, Levin explained the significance of this revision:
LEVIN: The habeas prohibition in the 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 Graham-Levin-Kyl amendment would not apply the habeas prohibition ... to pending cases. ... Thus, this prohibition would apply only to new habeas cases filed after the date of enactment.
Indeed, while the original amendment stated that it would apply to any application or claim "pending on or after the date of the enactment of this Act," the revised version simply stated that it would "take effect on the day after the date of the enactment of this Act."
But as has been widely documented, when the DTA returned to the Senate in late December 2005 as part of the National Defense Authorization Act, Graham proceeded to use questionable tactics to advance the argument that his revised amendment stripped the Supreme Court of jurisdiction in Hamdan. From a July 5 column by John Dean, former counsel to President Nixon:
When the conference report came back to the Senate on December 21, 2005, the Congressional Record reported a lengthy colloquy between Senators Graham and [Jon] Kyl [R-AZ], briefly joined by Senator [Samuel D.] Brownback [R-KS]. (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.
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.
The fictional Graham-Kyl colloquy went unnoticed until the two senators filed an amicus brief to the Supreme Court in which they argued that the passage of the Detainee Treatment Act had stripped the high court of jurisdiction in Hamdan. In the brief, Graham and Kyl cited their exchange in the Congressional Record as proof of the Senate's intent in approving the amendment. But they misrepresented the inserted colloquy as having occurred live on the Senate floor prior to the final passage of the bill, as attorney and blogger Lyle Deniston noted on March 23:
It [Graham and Kyl's amicus brief] notes that their colloquy "appears in the Congressional Record prior to the Senate's adoption" of the measure. And, it adds, that colloquy makes it "unmistakably clear" that the new law would end existing habeas cases. That exchange, they say, was "a genuine expression off the Senators' understanding of, and intention regarding, the jurisdictional provisions." It goes on to argue that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet." There is no bullet in the Record's recounting of the exchange, nor is there one with Sen. Levin's statement.
The Levin statement that Deniston referred to -- in which Levin reiterated that the revised amendment "does not apply to or alter any habeas case pending in the courts at the time of enactment" -- was inserted into the record by unanimous consent prior to the final vote on the bill. Graham and Kyl's scripted colloquy, by contrast, was written and inserted into the record "more than a month" after the December 21 vote, according to a July 12 article in The Post and Courier of Charleston, South Carolina. Nonetheless, as attorney and blogger Glenn Greenwald noted, Graham and Kyl's amicus brief "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.' " Slate's Emily Bazelon further explained the relevance of the senators' actions in her March 17 article:
The senators base their argument on the "legislative history" of the DTA -- the official statements that members of Congress make about a bill leading up to its passage, as captured in the Congressional Record. In other words, Graham and Kyl cite themselves: in particular, an "extensive colloquy" between the two that appears in the Record on Dec. 21, 2005, the day of the DTA's passage. Justice Department lawyers for the Bush administration rely on the same colloquy as evidence that "Congress was aware" that the DTA would strip the Supreme Court of jurisdiction to hear "pending cases, including this case" brought by the Guantánamo detainees.
The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. ... Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA. But it doesn't show that any other member of Congress shared their understanding. Everything else in the record that directly addresses whether the DTA forces the Supreme Court to toss Hamdan comes from Levin or another Democrat -- and explicitly states that the DTA leaves Hamdan alone.
Graham and Kyl's deception became public only after defense lawyers in Hamdan filed a brief noting that C-SPAN's coverage of the December 21, 2005, debate on the final bill included no such exchange and that the colloquy had been inserted "after the fact." On March 29, The Washington Post reported that the colloquy "never occurred" and "was manufactured." The Post went on to cite criticism from congressional scholars and legal experts, including David H. Remes, a partner at Washington law firm Covington & Burling LLP, who called the senators' actions "outrageous." He further stated, "This colloquy is critical to the government's legislative history argument, and it's entirely manufactured and misrepresented to the court as having occurred live on the Senate floor before a crucial vote." Dean wrote in his July 5 column, "I have not seen so blatant a ploy, or abuse of power, since Nixon's reign."
Furthermore, in his majority opinion in Hamdan, Supreme Court Justice John Paul Stevens roundly rejected Graham and Kyl's argument regarding the court's jurisdiction to hear the case and made a point of highlighting their deception. He wrote in a footnote, "While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases ... those statements appear to have been inserted in the Congressional Record after the Senate debate."