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
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