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Friday, July 14, 2006
Kylwinked
You've got to love the chutzpah of Senators John Kyl and Lindsey Graham. These two clowns actually sat down and made up an entire Senate hearing that never happened, just to further the cause of kissing the Bush administration's collective posterior.

Here's the short version, courtesy of the Carpetbagger Report (read ... and laugh):
I was talking to someone last week about the Hamdan case at the Supreme Court and my friend mentioned a "fraudulent argument" Sens. Lindsey Graham (R-S.C.) and Jon Kyl (R-Ariz.) presented to the court. I hadn't heard about it, so I assumed the Republicans had made a misleading, Bush-friendly case.
As it turns out, when my friend said "fraudulent," he meant "fraudulent."
Sens. Lindsey Graham (R-SC) and Jon Kyl (R-AZ) drafted a fictional account of a supposed debate they had on the Senate floor and submitted it to the Supreme Court in an effort to convince the Court that it did not have jurisdiction over the recent Hamdan case. Hamdan's lawyers, however, spotted the hoax. They told the Court that the legislative history was entirely invented after-the-fact, and that it consisted of "a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation had passed."

The brief noted that this Graham-Kyl colloquy was "simply an effort to achieve after passage of the Act precisely what [they] failed to achieve in the legislative process." The insertion of the added comments was noted and rejected by the court.
In fact, Graham and Kyl went to considerable lengths to try pull this stunt off. The phony transcript of Kyl, for example, quotes the Arizona senator as saying, "Mr. President, I see that we are nearing the end of our allotted time." The same transcript shows the two also added an interruption from Sen. Sam Brownback (R-Kan.) to help add to the authenticity of the Senate debate that never actually happened in reality.

John Dean, former counsel to President Richard Nixon, said the two tried to pull a "blatant scam." Graham responded by saying, "I know what I've done. I've done it before and I'll do it again."
And here's a lengthier treatment of the scamola, courtesy of the great
John Dean:
Last week, the Supreme Court issued its historic decision in Hamdan v. Rumsfeld. There, it dealt a substantial blow to the Bush/Cheney Administration's plans for the treatment of detainees at Guantanamo and, potentially, elsewhere as well - ruling out, for instance, the option of using military commissions without due process to try detainees.

The decision itself has been widely discussed. Less widely discussed, however, has been its backstory.

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign. ...

...Graham and Kyl's Ghosted Legislative History

Given the fact the Administration was fighting tooth and nail to defeat Senator McCain's prohibitions against torture, which were also part of this legislation, it did not exactly sail through the House of Representatives. While there was some effort in the House to change the language relating to habeas actions, that effort failed, and the provisions as agreed upon in the Senate remained.

When the conference report came back to the Senate on December 21, 2005, the Congressional Record reported a lengthy colloquy between Senators Graham and Kyl, briefly joined by Senator Brownback. (This extended dialogue runs some 12,000 words.) In this discussion of the meaning of the legislation, Graham and Kyl make several startling statements -- none more so than those that concerned the jurisdiction of federal courts over pending habeas petitions.

"So once this bill is signed into law, you anticipate that the Supreme Court will determine whether to maintain their grant of certiorari [in the Hamdan case]?" Graham asked Kyl. Kyl answered, "Yes, in my opinion, the court should dismiss Hamdan for want of jurisdiction. . . . I think that a majority of the court would do the right thing--to send Hamdan back to the military commission." (Emphasis added.)

In other words, after previously insisting - and to address Senator Levin's very specific concern on this score - that the revised language would in no way strip the Supreme Court's jurisdiction over Hamdan, Kyl was now maintaining exactly the opposite, with Graham's full cooperation.

Kyl continued, "As for legislative history" -- which he and Graham, his reference implied, were clearly making right then on the floor of the Senate -- "I think it usually is regarded as an element of the canons of [statutory] construction. It gives some indication of what Congress at least understood what it was doing--the context in which a law was enacted. Although, I understand that Justice Scalia does not read legislative history. I suppose that for his sake, we will have to strive to be exceptionally clear in the laws that we write." (Ironically, one reason Scalia disregards legislative history appears to be that he is well aware that Senators have been known to distort it.)

Those viewing C-Span's coverage of the Senate, and the Senators on the floor of the Senate, never heard this part, or any of the rest of, this lengthy colloquy between Graham and Kyl. That's because it never happened. No doubt aides of the Senators wrote this bogus and protracted dialogue, and either Graham or Kyl had it inserted in the record.

I first became aware of it when Emily Bazelon, a senior editor at Slate, wrote about it, after she confirmed the colloquy had never happened. As she noted, inserting comments into the Congressional Record is "standard practice." But what is "utterly nonstandard is implying to the Supreme Court" that Senate debate was live, when it most certainly was not. "When a senator wants to put a statement into the record," Bazelon noted, "he or she signs it, and writes 'live' on it, and, with the routine consent of the rest of the body, into the record it goes." This fact was not revealed by Graham and Kyl in their brief, however.

The Graham-Kyl Amicus Brief in Hamdan

In February 2006, Senators Graham and Kyl filed their amicus brief in the Hamdan case, supporting the Government's motion to dismiss the case for lack of jurisdiction under the Detainee Treatment Act (DTA). If they had been keeping faith with Senator Levin and the rest of their colleagues, they should have filed a brief on precisely the other side - making clear that the DTA, as amended, had had no intention to touch the Supreme Court's pending Hamdan case, and thus opposing the government's motion!

Instead, Graham and Kyl advised the Court they were sponsors of the Graham-Levin-Kyl amendment, and throughout their brief, cited their fictitious colloquy on December 21, 2005. Indeed, that colloquy is the core of their brief and its argument as to why the Court should dismiss the Hamdan case. Their hubris reaches the point of deception when they claim that the "legislative history confirms that Congress intended all pending claims to be governed by the DTA."

"In an extensive colloquy (which appears in the Congressional Record prior to the Senate's adoption of the Conference Report), Senators Graham and Kyl made it clear that the statute 'extinguish[es] one type of action - all of the actions now in the courts - and create[s] in their place a very limited judicial review of certain military administrative decisions." (This misleading statement is cited again later in the brief.)

Absent this bogus colloquy, in which the brief quotes Senator Graham as saying "I want our colleagues to know exactly what they will be agreeing to," there was actually no dispute throughout the deliberation of the Graham-Levin-Kyl language in the House or Senate as to the fact that the DTA would not retroactively remove the jurisdiction of the federal courts over pending cases. Indeed, it is unlikely any of Graham and Kyl's colleagues were aware of this dispute, which was manufactured after the fact.

Remarkably, the government's brief, too, relied on the same sham exchange when seeking dismissal of the Hamdan case.
Priceless.

Tags: News, News and politics, Politics, Current Affairs, News, , Congress, Bush, Republicans, John Kyl, Lindsey Graham,
posted by JReid @ 8:45 AM  
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"I am for enhanced interrogation. I don't believe waterboarding is torture... I'll do it. I'll do it for charity." -- Sean Hannity
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