There’s one large issue raised by Emily Bazelon that I didn’t address in my response to her: the allegedly misleading brief that Senators Kyl and Graham submitted to the Supreme Court. Like many other senators, Kyl and Graham had inserted comments reflecting their views on the Detainee Treatment Act into the Congressional Record. Bazelon says that they, unlike other senators, then submitted a brief to the Supreme Court that falsely depicted the event as live. (Oddly, she dismisses the importance of other false claims in this litigation on the theory that they didn’t matter much. Given her position that what mattered was the timing of a statement, not whether it was delivered on the floor, this alleged falsification shouldn’t concern her. She’s trying to have it both ways.)
The Kyl-Graham brief’s language is potentially confusing. It is responding to Hamdan’s lawyers’ attempt to dismiss the statements Kyl and Graham inserted into the record.
The detainees’ assertion that the colloquy is not probative of the meaning of the statute. . . lacks merit. The detainees cite nothing in the Congressional Record—which is conclusively presumed to reflect Congress’s proceedings—indicating that the colloquy is anything less than a genuine expression of the Senators’ understanding of, and intention regarding, the jurisdictional provisions of the DTA. Id. At 5-8; see also 151 Cong. Rec. E2341 (daily ed. Dec. 21, 2005) (noting that the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet, indicating “statements or insertions which are not spoken by a Member of the Senate on the floor,” or are underlined, indicating that they are “words inserted or appended, rather than spoken, by a Member of the House on the floor.”) The colloquy, moreover, appears in the Congressional Record immediately before the Senate’s adoption of the Conference Report, and predates the President’s signature.
This language could mislead lay readers into thinking that the Kyl-Graham colloquy was live. I assume lawyers—at least ones who aren’t grinding an axe, as Bazelon clearly is*—would realize that “conclusively presumed” is a term of art. The lawyer for Kyl and Graham, Jeff Lamken, says that he was trying to argue for the following proposition: Whether or not a statement was live, if it is in the Record it is entitled to be given the same weight as anything else in the Record.
This entire episode has made me more sympathetic to Justice Scalia’s strictures against the judicial use of legislative history. But if we are going to play the legislative-history game, I think good arguments can be made both for and against Lamken’s position. The argument against, I trust, is obvious. On the for side, consider the impact that judicial adoption of the alternative view would have. Do we really want senators to have an additional incentive to make their statements live, rather than submit them for the record? It seems as though this would have two effects: causing more Senate floor time to be dominated by gamesmanship over legislative history, and bogging down the Senate more than it already is.
Again, you can argue it either way. I don’t take any strong position on whether a distinction should be made between live and inserted statements. But I do think you have to be consistent about it. Hamdan’s lawyers and Justice Stevens weren’t, perhaps out of misunderstanding. Emily Bazelon knows the score and is still trying to have it both ways.
* See the last bit of her latest entry (scroll down here), to which I’ll respond soon.