In the Detainee Treatment Act of 2005, Congress eliminated the federal courts’ jurisdiction over the treatment of detainees in the war on terrorism. A question arose about whether jurisdiction was eliminated only over future cases, or was also eliminated over pending cases. The act was drafted to incorporate language that courts had, in the past, taken to apply to all cases, current and future. The legislative history, however, was equivocal: Some Democratic senators had made speeches or issued statements suggesting that the act applied only to future cases, and some Republican senators had taken the opposite position.
Justice John Paul Stevens, writing for the Supreme Court in Hamdan v. Rumsfeld, threw out the Republican statements on the theory that they were inserted after the debate was over. Rather than reflecting the view of Congress about what it was on the verge of passing, those statements were attempts to influence the judiciary through subterfuge. The Court found that it did indeed have jurisdiction over the case—and Republican senators Lindsey Graham of South Carolina and Jon Kyl of Arizona were subjected to some harsh criticism for their alleged misconduct.
Stevens had his facts wrong: The Democratic statements he cited were inserted after the debate but before the vote, just as the Republican statements were.
When I made that point last summer, Emily Bazelon of Slate jumped all over me: Stevens had it right, Kyl and Graham were too trying to game the court, and the detainee lawyers whom I accused of misleading the Court were noble seekers of truth and justice victimized by my smears.
Events since then, however, have tended to confirm my take on what Congress was trying to do and discredit Bazelon’s. After Hamdan, Congress — the very same Congress that passed the Detainee Treatment Act — passed the Military Commissions Act. This time Congress used language that was hard to misinterpret: It said that the courts’ jurisdiction over these cases was wiped out “without exception.”
Last week, the D.C. Circuit Court of Appeals got the message. “It is almost as if the proponents of these words were slamming their fists on the table shouting ‘When we say “all,” we mean all — without exception!’” (emphasis in original). In a footnote, the court pointed out that this “without exception” language is unusual in a statute. It also ridiculed the detainees’ lawyers for pretending that this language doesn’t mean what it clearly means.
Neither the 2006 Military Commissions Act nor this court decision proves that I was right last year. Maybe Congress changed its mind between 2005 and 2006, or maybe the court’s majority got it wrong. (Benjamin Wittes, a center-left commentator on the law and no fan of President Bush’s detention policies, thinks the court got it right.)
But both the act and the decision do add weight to my side of the argument. They suggest that Congress wanted to abolish jurisdiction in pending as well as future cases; that it was Democrats and the detainees’ lawyers, not Republicans, who tried to mislead the courts about the intent of the law; and that when they succeeded in misleading Justice Stevens, Congress reacted by making its intent crystal clear.