The ITT List
Tuesday Mar 28, 2006 9:45 am
did Lindsey Graham and Jon Kyl criminally try to defraud the Supreme Court?
Emily Bazelon at Slate reports
eriposte at the Left Coaster has a brief analysis
The issue is whether a colloquy between the Senators was actually a portion of live debate on the floor, or was instead inserted into the Congressional Record later. In their amicus brief filed with the Supreme Court in the case Hamdan v. Rumsfeld, Graham and Kyl argue that the Court has no jurisdiction to even hear the case, based on the provisions of the Detainee Treatment Act ("DTA") passed last year.
The actual text of the statute, however, is open to considerable interpretation. In reviewing the meaning of laws, courts commonly refer to the "legislative history" of a statute to determine what the Congress intended. Graham and Kyl refer to their own exchange of views - a colloquy - which is officially recorded in the Congressional Record, to support their legal contention.
And Senators Graham and Kyl go to great pains to convey the idea to the Court that their exchange was in fact a live portion of the debate. However, as the C-SPAN video recording of the proceedings proves, it was not - they inserted their "colloquy" later.
The question then arises whether their attempt to fool the Court into thinking their colloquy was live, as the plain language of their official brief to the Court clearly shows, is an act of criminal fraud.
this is the relevant portion of the text from the BRIEF OF SENATORS GRAHAM AND KYL AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS:
Petitioner’s assertion that the colloquy is not probative of the statute’s meaning, Pet. Opp. to Gov’t Motion to Dismiss 10, lacks merit. Petitioner cites nothing in the Congressional Record—which is conclusively presumed to reflect Congress’s proceedings—indicating that the colloquy is anything less than a genuine expression of the Senators’ understanding of, and intention regarding, the jurisdictional provisions of the DTA. See 151 Cong. Rec. E2341 (daily ed. Dec. 21, 2005) (noting that the 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”). The colloquy, moreover, appears in the Congressional Record immediately before the Senate’s adoption of the Conference Report, and predates the President’s signature.3 See 151 Cong. Rec. S14,260-S14,268 (daily ed. Dec. 21, 2005) (Sen. Graham & Sen. Kyl colloquy); id. at S14,275 (adopting conference report).4
--
Their remarks in the Congressional Record were not bulleted or underlined. But neither were they a live portion of the debate.
Emily Bazelon observes:
"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."
eriposte asks two questions of Senators Graham and Kyl:
(a) whether they are stating under penalty of perjury that the conversation they claimed to have on the Senate floor actually occurred on the Senate floor prior to the passage of the Detainee Treatment Act (DTA) of 2005
(b) whether this conversation ever occurred, and if so, where it occurred
eriposte at the Left Coaster has a brief analysis
The issue is whether a colloquy between the Senators was actually a portion of live debate on the floor, or was instead inserted into the Congressional Record later. In their amicus brief filed with the Supreme Court in the case Hamdan v. Rumsfeld, Graham and Kyl argue that the Court has no jurisdiction to even hear the case, based on the provisions of the Detainee Treatment Act ("DTA") passed last year.
The actual text of the statute, however, is open to considerable interpretation. In reviewing the meaning of laws, courts commonly refer to the "legislative history" of a statute to determine what the Congress intended. Graham and Kyl refer to their own exchange of views - a colloquy - which is officially recorded in the Congressional Record, to support their legal contention.
And Senators Graham and Kyl go to great pains to convey the idea to the Court that their exchange was in fact a live portion of the debate. However, as the C-SPAN video recording of the proceedings proves, it was not - they inserted their "colloquy" later.
The question then arises whether their attempt to fool the Court into thinking their colloquy was live, as the plain language of their official brief to the Court clearly shows, is an act of criminal fraud.
this is the relevant portion of the text from the BRIEF OF SENATORS GRAHAM AND KYL AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS:
Petitioner’s assertion that the colloquy is not probative of the statute’s meaning, Pet. Opp. to Gov’t Motion to Dismiss 10, lacks merit. Petitioner cites nothing in the Congressional Record—which is conclusively presumed to reflect Congress’s proceedings—indicating that the colloquy is anything less than a genuine expression of the Senators’ understanding of, and intention regarding, the jurisdictional provisions of the DTA. See 151 Cong. Rec. E2341 (daily ed. Dec. 21, 2005) (noting that the 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”). The colloquy, moreover, appears in the Congressional Record immediately before the Senate’s adoption of the Conference Report, and predates the President’s signature.3 See 151 Cong. Rec. S14,260-S14,268 (daily ed. Dec. 21, 2005) (Sen. Graham & Sen. Kyl colloquy); id. at S14,275 (adopting conference report).4
--
Their remarks in the Congressional Record were not bulleted or underlined. But neither were they a live portion of the debate.
Emily Bazelon observes:
"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."
eriposte asks two questions of Senators Graham and Kyl:
(a) whether they are stating under penalty of perjury that the conversation they claimed to have on the Senate floor actually occurred on the Senate floor prior to the passage of the Detainee Treatment Act (DTA) of 2005
(b) whether this conversation ever occurred, and if so, where it occurred
