”Justice Stevens took the plain language of the statute and made legal contortions to get to the result the Court wanted to get to,” South Carolina Republican Sen. Lindsey Graham tells National Review Online. “It was turning statutory interpretation and the interpretation of a record upside down, in my opinion, to get a predetermined result. The majority of the Court wanted to rule on the legal situation in Guantanamo Bay, and no statute was going to get in their way.”
Graham’s comments to NRO are far stronger than the statement he released the day of the decision. Then, Graham, along with Republican co-sponsor Sen. Jon Kyl, said, “We are disappointed with the Supreme Court’s decision. However, we believe the problems cited by the Court can and should be fixed.”
Although much has been made of Hamdan’s reliance on the Geneva Conventions, what might be called the threshold issue of the case — the issue without which there would have been no Hamdan ruling at all — was a narrow question involving the Detainee Treatment Act and, more precisely, when it went into effect. In the act, which became law on December 30, 2005, Congress gave the U.S. Court of Appeals for the District of Columbia “exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” Beyond that, the act said, “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba…”
In Hamdan, the government argued that the Act’s “no court” provision meant that, well, no court — other than the D.C. Court of Appeals, as specified in the law — had the authority to hear a case like Hamdan. “The Government argues that [the Act] had the immediate effect, upon enactment, of repealing federal jurisdiction not just over detainee habeas actions yet to be filed but also over any such actions then pending in any federal court — including this Court,” wrote Stevens in his majority opinion. “Accordingly, it argues, we lack jurisdiction to review the Court of Appeals’ decision…”
But Stevens rejected that argument. Just because the act specified “no court,” and just because it went into effect when Hamdan was in the system, did not mean that the Supreme Court couldn’t rule on Hamdan. Stevens argued that the act applied only to new cases, not those already underway. To support his contention, he pointed to comments from Michigan Democratic Sen. Carl Levin, another cosponsor of the legislation, who wanted the act to apply only to new cases, not to pending cases like Hamdan. Stevens briefly considered and then rejected comments from the act’s Republican cosponsors: “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,” Stevens wrote, “those statements appear to have been inserted into the Congressional Record after the Senate debate.” [emphasis in the original].
It would be an understatement to say that Sen. Graham disagrees with Stevens’s reading of the Senate record. “Senators provide written colloquies all the time during debates,” he says. “If you look at the transcript of my floor speeches, the only thing that made sense was to say that the habeas cases would be dismissed. I’m all over the Senate record saying we’re going to dismiss these lawsuits…Stevens does this contorted analyzing of Congressional intent that, quite frankly, as a lawyer, I’ve never seen before.”
Graham says he agrees with the dissenting opinions in the Hamdan case. “Read Scalia’s dissent,” he says. “I agree with Scalia.” In that dissent, Justice Antonin Scalia argued that the act’s “no court” provision was a “plain directive” and that Stevens’s “implausible reading” of it was “patently erroneous.”
Worst of all, Scalia said, was Stevens’s reliance on statements made in the Senate floor debate, rather than on the actual language of the law. “We have repeatedly held that such reliance in impermissible where, as here, the statutory language is unambiguous,” Scalia wrote. But even if one were to examine the Senate debate, Scalia continued, one would find plenty of reasons to believe that lawmakers intended cases like Hamdan to be covered by the act. Indeed, Scalia wrote, “Some of the statements of Sen. Graham…only make sense on the assumption that pending cases are covered.”
Certainly Graham agrees. But not everyone shares his view. Indeed, not only Levin but also some critics of the Hamdan decision argue the “plain directive” of the act is not quite as plain as it appears. “Stevens’s opinion is horrible, but the act did not nail this issue down well,” says David Rivkin, a former Justice Department official who often writes for NRO. “The better interpretation of the act is that it did apply to a case like Hamdan, but it is not a slam dunk. They did not do it clearly because they had pushback from Democrats.”
It’s certainly true that there was, six months ago, a vigorous debate over whether the act applied to Hamdan. In January, the Washington Post, writing of Graham and Levin, reported, “The two lawmakers and their colleagues have disagreed sharply in recent days over whether the legislation is meant to apply to cases such as Hamdan’s that were filed before [President] Bush signed the legislation into law.”
Justice Stevens sided with Levin. So what now? The unwelcome news, for fans of Stevens’s decision, is that, because of that ruling, Congress will now revisit the Detainee Treatment Act and make its intentions very clear, possibly in a way that Levin and some of his fellow Democrats might not choose. “Stevens did us a favor,” says Rivkin. “Before, this was a highly technical debate. From now on, it’s a policy debate. Do you really want to make the case that unlawful enemy combatants should be given exactly the same rights as lawful ones?”
The answer for most lawmakers will be no, and the law will be strengthened. And for that reason, the Hamdan decision, hailed as a far-reaching victory for the Bush administration’s opponents, might well be a short-lived one.
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