But Stevens was wrong. The statements he cited were all inserted after the debate, just like the ones he dismissed.
Emily Bazelon, a writer for Slate who has been beating up on Kyl and Graham for some time on this issue, tries to defend Justice Stevens, the Hamdan lawyers who began this chain of mistakes, and, by implication, herself. She raises a lot of distracting side-issues, but doesn’t really lay a finger on any of my claims.
She concedes that Hamdan’s lawyers were wrong to claim that the Kyl-Graham colloquy was inserted into the record after the act had passed. She concedes as well that the Democrats’ Dec. 21 statements were inserted after the debate but before the act passed, just like the Kyl-Graham colloquy. But, she writes, “that’s because the key statements cited by Stevens and in Hamdan’s brief were made weeks earlier” (emphasis hers). She’s wrong. Here’s what Justice Stevens writes after trashing Kyl and Graham: “All statements made during the debate itself support Senator Levin’s understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252–S14253, S14274–S14275 (Dec. 21, 2005).” Every passage he cites is from the record for Dec. 21, and each was inserted after the debate. There’s just no way to defend Stevens’s distinction between those passages and the Kyl-Graham colloquy, which was inserted at the same time.
Bazelon maintains that “Hamdan’s lawyers didn’t try to pass off [the Dec. 21 Democratic] statements as live, taking care to refer to them as ‘comments placed in the Congressional Record.’” My article gave those lawyers the benefit of the doubt by noting that they could have made innocent mistakes. Bazelon is pointing to a feature of their brief that tells against innocence. Yes, the brief does include a footnote with the careful language she quotes. It also, in the main text, puts the fact that the Kyl-Graham colloquy “never actually took place” in shocked italics. It then argues that “[i]n contrast, Senator Levin repeatedly and publicly explained for over a month before the bill was passed that the Act’s jurisdiction-stripping provisions grandfathered existing challenges.” The footnote there refers to Levin’s Dec. 21 comments “placed in the Congressional Record.” The brief’s next sentence refers to how other legislators relied on Levin’s interpretation, again citing a bunch of never-delivered Dec. 21 comments. No italics in any of these cases. You would have to be a very careful reader — a more careful reader than Justice Stevens proved to be — to avoid being misled.
So what about those “key statements. . . made weeks earlier”? Bazelon doesn’t try to deny that many of them were inserted into the record rather than delivered live. But that doesn’t matter, supposedly, because those statements were inserted long enough before the bill was enacted to have affected the debate. For the same reason, we’re supposed to take a Levin press release and a John Kerry letter as evidence that Levin was right about the legislative intent. (Bazelon goes so far as to suggest that Kyl and Graham, by not responding to the press release, the letter, and the inserted statements, were tacitly agreeing with them. Right.) Even if we accept Bazelon’s argument, however, it is still the case that the Hamdan lawyers misrepresented the timing of the Kyl-Graham statement and that Stevens dismissed that statement for reasons that he wrongly failed to apply to the other Dec. 21 statements.
But Bazelon’s argument isn’t terribly persuasive. Senator Levin’s November comments, on which Justice Stevens and Bazelon set so much store, don’t clearly support the conclusions they wanted, for two reasons. First of all, the senator said on Nov. 14 that the pending cases could proceed only under the new standards of review that the Detainee Treatment Act established. Levin’s statement of Dec. 21 goes further, saying that the act doesn’t affect Hamdan and other pending cases. But on Bazelon’s own account, we should ignore that too-late-to-affect-the-debate statement. (Pity the Court didn’t.) Second, the Kyl-Levin-Graham amendment was a modification of an amendment that had passed the Senate earlier that month. That earlier amendment wiped out jurisdiction over pending cases, and some of its opponents objected to it on that basis. But Levin, talking about the new amendment on Nov. 15, says that the “major change” it made to the previous amendment was to provide for courts to review the decisions of military commissions. He doesn’t say that the major change to the amendment was to exempt pending cases altogether.
Senator Durbin, in a statement inserted into the same day’s record, noted that he had objected to the original amendment because it wiped out jurisdiction in existing cases, including Hamdan. The new amendment, he said, “would somewhat improve” on the original by allowing for judicial review of military commissions’ decisions. Durbin didn’t say anything to suggest that he thought the new amendment differed from the old one by not applying retroactively.
Finally, Kyl and Graham, two of the sponsors of the new amendment, did not try to sell it to their colleagues by saying that they had retreated on the question of retroactivity. They gave no indication that they understood the amendment the way that the Court interpreted it. Some of Graham’s remarks, as Justice Antonin Scalia noted in dissent, make sense only on the assumption that the amendment had retroactive application.
The truth is that several Democratic senators tried to spin the amendment, mostly in statements inserted into the record, to mean something other than the import of its words. Hamdan’s lawyers then misrepresented the legislative history before the Court in order to get it to overlook its precedents about how to apply the act’s language to pending cases. Those senators and lawyers succeeded. And Emily Bazelon is pointing an accusatory finger at the senators who stood in the way of these distortions.
— Ramesh Ponnuru, an NR senior editor, is author of The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.