Debating the DTA Debate:

Last March, Emily Bazelon wrote a Slate column accusing Senators Jon Kyl (R-AZ) and Lindsay Graham (R-SC) of misleading the Supreme Court in their amicus brief discussing the legislative history of the Detainee Treatment Act. The Kyl-Graham brief relied, in part, on a colloquoy that was inserted into the Congressional Record rather than delivered on the floor during an actual Senate debate.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA. But it doesn't show that any other member of Congress shared their understanding. Everything else in the record that directly addresses whether the DTA forces the Supreme Court to toss Hamdan comes from Levin or another Democrat—and explicitly states that the DTA leaves Hamdan alone.

Justice John Paul Stevens majority opinion in Hamdan subsequently picked up on the discrepancy (which was also noted in Hamdan's briefs), as Bazelon reported here.

Stevens dropped a little footnote—actually, a not so little one—about the debate over the DTA on the Senate floor. "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 … those statements appear to have been inserted in the Congressional Record after the Senate debate," Stevens wrote. The italics are his. The embarrassment is the senators'.

On Monday, Ramesh Ponnuru suggested in NRO that the charges against Kyl and Graham were much ado about nothing, and that Justice Stevens himself misrepresented the legislative history of the DTA because the statements upon which he relied in his opinion were also inserted into the record rather than delivered during live Senate debate.

Stevens handles the problem in footnote 10. The statements by Kyl and Graham, he writes, "appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin's understanding" (emphasis in original).

But Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act). Compare the cited passages of the Congressional Record to the CSPAN videotape of the floor debate, and it is clear that Levin's statement and the other statements supporting his position were inserted after the fact, just as Kyl and Graham's statements were.

The issue did not end there, however. Yesterday, Emily Bazelon published this response to Ponnuru on Slate.

While it's true that the Democrats don't show up talking about Hamdan on a C-SPAN tape of the four-minute debate that preceded the DTA's passage on Dec. 21, that's because the key statements cited by Stevens and in Hamdan's brief were made weeks earlier. It's also true that other Democrats inserted statements into the record on Dec. 21 to show their support for Levin's understanding of the law. But Hamdan's lawyers didn't try to pass off those statements as live, taking care to refer to them as "comments placed in the Congressional Record."

This morning, Ponnuru published this retort on NRO, defending his on central claim.

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.

To be continued?

UPDATE: Yes. Emily Bazelon has attached an addendum to her last piece, and Ramesh Ponnuru makes further arguments here in The Corner, concluding:

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.
Julian Ku also has some thoughts on the debate here.