Source: scotusblog

March 23, 2006

Posted by Lyle Denniston

In the few minutes that it took the Senate to complete passage of the Detainee Treatment Act last Dec. 21, little was said in the chamber beyond a round of congratulations for a job well done. But the Congressional Record for that very brief legislative effort now runs to 21 pages, with three columns of small print per page. And out of that Record of what was not said but nevertheless was recorded has emerged a debate that may go a long way to influence how the Supreme Court and the D.C. Circuit Court resolve the next big controversy arising out of the war on terrorism.

That controversy, simply put, is whether the foreign nationals being held as terrorism suspects at Guantanamo Bay, Cuba, have any legal rights of any consequence. But there is a prelude to that controversy: the question of whether the courts have lost their jurisdiction to weigh a wide array of constitutional and international law challenges to U.S. treatment of those detainees.. The Detainee Treatment Act might scuttle all of those existing challenges -- including Hamdan v. Rumsfeld (05-184), due to be argued next Tuesday in the Supreme Court -- and replace them with a much more limited court review of military proceedings at the Cuba base.

Before the Supreme Court may proceed to decide the Hamdan case, a test of the constitutionality of the war crimes tibunals (named "military commissions,\"). it must decide that the Detainee Treatment Act did not take away its jurisdiction to rule. Similarly, the D.C. Circuit Court must find -- in a separate set of cases -- that it still has jurisdiction before it may go forward and rule on sweeping challenges to the military's decisions that foreign nationals must remain detained in Cuba, even if no charges are filed against them. The Circuit Court heard the dispute on Wednesday. (No one knows, of course, whether the Circuit Court or the Supreme Court will rule first; the Supreme Court will have the last word, though.)

Thus, the jurisdictional issue is crucial. And that accounts for the heavy effort that all sides -- lawyers for the detainees, Justice Department lawyers, and lawyers for Senators and other friends-of-court -- have made to persuade the courts of their view of what the new court-stripping law means.

That running controversy in two courts begins, of course, with a dispute over the meaning of the words Congress chose to write into the new detainee law. Detainees' lawyers read it as clearly indicating that Congress did not intend to wipe out existing cases pending in the courts when the Act passed; they have a key Senator and a number of amici on their side. The governmen's lawyers are just as insistent that the Act clearly does, indeed, end all habeas jurisdiction; they have two key Senators and a number of amici on their side.

It could be, of course, that either the Supreme Court or the D.C. Circuit will find the answer in the language alone; Justice Antonin Scalia, for one, is almost certain to want to focus solely on the words themselves, believing -- as he does -- that legislative history is not dependable history at all. But other Justices, and Circuit Court judges, may not be satisfied with the words alone and may want to look into legislative history. Figuring prominently in that history are those 21 pages of the Congressional Record for last Dec. 21.

Final Senate consideration of the National Defense Authorization Act for Fiscal Year 2006 -- containing the detainee law -- was perfunctory; on Dec. 21. No one debated the meaning of any provision in the bill, and it won passage without a recorded roll-call vote. An audio recording of that part of the floor proceedings made by C-Span indicates no debate at all.

But the Congressional Record shows that the discussion was extensive, indeed. The Record in that part opens with a statement by Sen. Carl Levin, a Michigan Democrat and one of the authors of the new detainee law. He argues that the final measure was not retroactive, and so did not strip the courts of jurisdiction over existing cases. The Bush Administration wanted that, but "we successffully opposed" the maneuver, Levin said.

The Record then moves to a lengthy exchange between the new law's two other key sponsors, Republican Sens. Lindsey Graham of South Carolina and John Kyl of Arizona. Kyl begins, and it sounds as if he is on the Senate floor: "I would like to say a few words" about the legislation, which he said "expels lawsuits brought by enemy combatants from United States courts." He then comments, realistically: "I see that my colleague, the senior senator from South Carolina, is also on the floor."

Back and forth, Kyl and Graham discuss the new law, with continuing emphasis on their argument that the courts will lose jurisdiction over existing cases under the new bill. Along the way, they criticize the Supreme Court's 2004 decision in Rasul v. Bush, allowing the Guantanamo detainees to file challenges (but without specifying any relief). The new law, they stress, is intended to overturn Rasul. At one point, Kyl says: "The system of litigation that Rasul has wrought is unacceptable." Graham immediately says: "I agree entirely."

For eight pages, the colloquy continues. Other senators who also did not speak are quoted before final passage is noted.

Since then, the Graham-Kyl colloquy -- and Sen. Levin's comments, too -- have taken on a new life in the briefs filed in the Supreme Court and the D.C. Circuit. When the Justice Department asked the Supreme Court to dismiss the Hamdan case under the detainee law, it cited the exchange and commented that "legislative history supports the conclusion that Congress was aware that the act's jurisdiction-ousting rule would extend to pending cases, including this case."

Hamdan's lawyers, in response, criticized the Record insertion as "a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation passed." The Justice Department, however, did not see it that way; in reply, it said it "is not so" that the senators' views became known only after the bill was passed. "The legislative history itself tells a much different story," it says. It refers again to the Graham-Kyl exchange in the Record, and notes that Graham was talking of retroactive effect for weeks before -- just as Hamdan's lawyers had said Levin was talking about non-retroactivity beforehand.

But the most energetic use of the Congressional Record material comes in a friend-of-court brief by Senators Graham and Kyl. It 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 same dueling interpretations of the legislative history of that Dec. 21 session also have played out in discussing the debate that senators had on the measure before the final version was worked out. Each side finds there more support for its view of how to read the law.

The effect of all this on the courts will only be known when final decisions emerge, later this spring or in early summer.

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