[Congressional Record Volume 152, Number 15 (Thursday, February 9, 2006)]
[Senate]
[Pages S970-S973]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            ENEMY COMBATANTS

  Mr. KYL. Mr. President, I rise today to put into the Record a letter 
that Senator Graham and I recently sent to the Attorney General, and to 
respond to misrepresentations that have been made in the press and by 
others regarding the circumstances of the enactment of the Graham 
amendment to last year's Defense Authorization bill. The letter 
responds to similar misleading attacks that were made against the 
Justice Department at the beginning of this year. My office has 
received several inquiries about this letter, which was sent to the 
Attorney General on January 18. So that anyone interested in this 
matter might review the letter, I will ask to have it printed in the 
Record.
  I ordinarily would not comment on the meaning of legislation that 
already has been enacted into law. In this case, however, there has 
been a considerable amount of post-enactment commentary by others on 
the meaning of the Graham amendment. Much of this commentary insinuates 
that the Administration and the backers of the amendment are violating 
an agreement with members of the minority by characterizing the 
amendment as governing pending litigation. Since the enactment of the 
Graham amendment last December, some critics have begun to paint a 
revisionist history of this legislation. In this new account, the 
Graham amendment supposedly was intentionally modified by the Senate so 
as not to affect pending litigation. Also in this version of events, 
Senators relied on representations that the amendment was modified to 
carve out pending litigation when they voted in favor of its final 
passage. This conspiracy theory is without foundation.
  For those unfamiliar with the Graham amendment, the disputed 
provision in the legislation changes the Federal habeas code by adding 
a subsection providing as follows: ``Except as provided in section 1005 
of the Detainee Treatment Act of 2005, no court, justice, or judge 
shall have jurisdiction to hear or consider an application for a writ 
of habeas corpus filed by or on behalf of an alien detained by the 
Department of Defense at Guantanamo Bay, Cuba.'' The amendment also 
provides that ``[t]his section shall take effect on the date of the 
enactment of this Act.'' In addition, the amendment establishes 
substantive standards for limited judicial review of CSRT 
determinations and military-commission decisions, and provides that the 
paragraphs creating those review standards ``shall apply with respect 
to any claim whose review is governed by one of such paragraphs and 
that is pending on or after the date of the enactment of this Act.''
  Some critics now assert that nothing in the amendment prevents pre-
enactment habeas actions from going forward in their previous form. For 
reasons explained in the letter to the Attorney General, I believe that 
such an interpretation is untenable. In addition to the points made in 
the letter, I would also add the following: the amendment states that 
the changes that it makes to the habeas code ``shall take effect on the 
date of the enactment of this Act.'' If the current pack habeas cases 
are allowed to go forward in their current form, the law's provision 
that ``no court, justice, or judge shall have jurisdiction'' to hear 
those cases in that form will not be effective on the date of the law's 
enactment. Rather, the courts still would have jurisdiction over these 
cases after the date of enactment, and the law's all-encompassing 
jurisdictional bar would become effective only when the current 
litigation would exhaust itself--a date that likely would come only 
years in the future. Such a result would not be consistent with the 
requirement that the law's total jurisdictional prohibition ``take 
effect of the date of the enactment of this Act.''
  Of those critics who argue that the amendment carves out pre-
enactment habeas cases, I would simply ask, what part of ``no court, 
justice or judge'' do you not understand? How could this language 
possibly be more comprehensive? And how could any Senator possibly have 
been misled as to its effect?
  Some of the recent criticism of the amendment in the press has taken 
a new tack. A few critics have begun to suggest that even if the 
legislative text of the Graham amendment does wipe out the pending 
habeas cases, Senators were affirmatively misled about this aspect of 
the final amendment. The allegation is that Senators were led to 
understand that the amendment that they were voting on would not affect 
pending cases. I have reviewed the legislative record from the days 
leading up to the vote on final passage of the Graham amendment, and 
find this suggestion wanting. Allow me to describe what was actually 
said about the original version of the amendment--the Graham/Kyl 
amendment--as well as the final version, the Graham/Levin/Kyl 
amendment, prior to their passage.

[[Page S971]]

  On November 10, Senator Levin stated with regard to the original 
Graham/Kyl amendment, ``I read the language as to how broad it is. It 
eliminates explicitly any appeal: No court, justice, or judge shall 
have jurisdiction to hear or consider an application for a writ of 
habeas corpus, and that is the way an appeal goes to a court from one 
of these people. It is eliminated.'' (151 Cong. Rec. S12665.) 
Similarly, later that day, Senator Bingaman characterized the original 
Graham amendment as follows: ``It essentially denies all courts 
anywhere the right to consider any petition from any prisoner being 
held at Guantanamo Bay.'' (151 Cong. Rec. S12667.) And later, on 
November 15, Senator Durbin said the following about the original 
Graham/Kyl amendment: ``the amendment would eliminate habeas for 
detainees at Guantanamo Bay. . . . It would strip Federal courts, 
including the U.S. Supreme Court, of the right to hear any challenge to 
any practice at Guantanamo Bay, other than a one-time appeal to the 
D.C. Circuit. . . . It applies retroactively, and therefore also likely 
would prevent the Supreme Court from ruling on the merits of the Hamdan 
case, a pending challenge to the legality of the administration's 
military commissions.'' (151 Cong. Rec. S12799.)
  Thus from the beginning, Senators recognized and emphasized to their 
colleagues that the original Graham amendment language was 
comprehensive. They also recognized and emphasized that the amendment 
barred pending cases from going forward, including the Hamdan case in 
the Supreme Court. These aspects of the original amendment not only 
were generally acknowledged, but were a point of controversy during the 
Senate debate.
  Had the subsequent Graham/Levin/Kyl amendment departed from the 
original amendment by carving out pending cases, this would have been a 
momentous change. Aside from the fact that such a change would have 
gutted the amendment, it also would addressed one of the issues about 
which opposing Senators had expressed sharp concern. Surely, had such a 
change been made or even intended to be made, the fact would have been 
noted. Instead, it is the dog that did not bark.

  First, neither Senator Graham nor I ever said anything in the days 
leading up to the final vote on the amendment that could possibly 
suggest to anyone that the modified amendment exempted pending cases. 
Senator Graham is the lead sponsor and I am an original cosponsor of 
the amendment that passed the Senate on November 10. We controlled the 
amendment. No one was in a better position than we were to describe 
what the amendment does and does not do. Had such a major change to the 
amendment been made, it is inconceivable that one of us would not at 
least have commented on it. No such comment or even the suggestion of 
such a change was made by either one of us.
  Indeed, the few statements that Senator Graham did make prior to 
passage of Graham/Levin/Kyl that describe the amendment's reach tend to 
confirm that the amendment does not treat detainees differently based 
on when they filed their claims. For example, on the evening of 
November 14, when the final amendment was introduced, Senator Graham 
noted that ``[i]nstead of having unlimited habeas corpus opportunities 
under the Constitution, we give every enemy combatant, all 500, a 
chance to go to Federal court, the Circuit Court of Appeals for the 
District of Columbia.'' (151 Cong. Rec. S12754.) ``What we have done, 
working with Senators Levin, Kyl, and others, we have created that same 
type of appeals process for all military commission decisions.'' Ibid.
  During that same evening, Senator Levin also commented on the new 
amendment. Although he said that the amendment did not ``strip 
jurisdiction'' from the courts, he made clear that he meant that 
jurisdiction remained in place because the pending cases--including 
challenges to military-commission decisions--could go forward as claims 
invoking the substantive review standards of the new amendment. Senator 
Levin stated: ``What we have done in this amendment, we have said that 
the standards in the amendment will be applied in pending cases, but 
the amendment will not trip the courts of jurisdiction over those 
cases. For instance, the Supreme Court jurisdiction in Hamdan is not 
affected.'' (151 Cong. Rec. S12755.) Again, later: ``what our amendment 
does, as soon as it is enacted and the enactment is effective, it 
provides that the standards we set forth in our amendment will be the 
substantive standards which we would expect would be applied in all 
cases, including cases which are pending as of the effective date of 
this amendment.'' Ibid. And again: ``because it would not strip courts 
of jurisdiction over these matters where they have taken jurisdiction, 
it does, again, apply the substantive law and assume that the courts 
would apply the substantive law if this amendment is agreed to.'' Ibid.
  Whether the amendment, by barring one type of claim and authorizing 
another type to take its place, strips the courts of jurisdiction, is, 
to some extent, a matter of perspective. It is a question of whether 
the glass is half empty or half full. On the operative issue, however, 
Senator Levin's remarks on November 14 are consistent not only with my 
own and Senator Graham's characterization of the amendment (see, e.g. 
151 Cong. Rec. S14263), but also with the interpretation now advanced 
by the Justice Department: that the current claims can go forward, but 
only as claims for review under the substantive standards created by 
the new act.
  It bears mention that the revised amendment's authorization of 
judicial review of military-commission decisions, though narrow and 
venue-restricted, was a substantial departure from the original 
amendment. As Senator Levin had emphasized on November 10, the original 
amendment ``eliminates court review of the sentences of enemy 
combatants before these commissions.'' (151 Cong. Rec. S12664.) He 
stated that the amendment even ``eliminates the appeal of a conviction 
that led to a capital offense.'' (151 Cong. Rec. S12665.) Under the 
original Graham amendment, no appeal of any kind would have been 
permitted from the military-commission verdict in the Hamdan case.
  The revised amendment does allow limited appeals of final military-
commission decisions. In fact, this change was described to Senators as 
the principal difference between the original and revised Graham 
amendments. Senator Levin noted on the morning of November 15, before 
the vote on Graham/Levin/Kyl:

       The amendment which was approved last Thursday, which is 
     the one now awaiting this amendment, would have provided for 
     review only for status determinations and not of convictions 
     by military commissions. . . . One of the reasons I voted 
     against the amendment last Thursday is that it did not 
     provide for that direct judicial review of convictions by 
     military commissions. That is the major change in the 
     amendment before the Senate, the so-called Graham-Levin-Kyl 
     amendment which is before the Senate. There are a number of 
     other changes as well, but of all the changes, what this 
     amendment does is add . . . a direct appeal for convictions 
     by military commissions. (151 Cong. Rec. S12754.)

  Other Senators speaking about the amendment prior to the final vote 
did not even view the detainee's glass as half full. On the morning of 
November 15, Senator Specter exhorted his colleagues to oppose the 
amendment, stating: ``On the face of the Graham amendment, it .  .  . 
even takes away jurisdiction from the Supreme Court of the United 
States.'' (151 Cong. Rec. S12799.) He later stated that the amendment 
would ``strip Federal courts of the authority to consider a habeas 
petition from detainees being held in U.S. custody as enemy 
combatants,'' (151 Cong. Rec. 12801), and reiterated that the Graham/
Levin/Kyl amendment was an amendment ``which on the face takes away 
jurisdiction of the Supreme Court of the United States.'' Ibid. Senator 
Specter's remarks should at least have placed any Senator on inquiry 
notice that the final amendment might affect pending cases.
  Finally, Senator Durbin also spoke about the final Graham amendment 
prior to the vote. As I mentioned earlier, on the morning of November 
15, Senator Durbin expressed concern that the original Graham/Kyl 
amendment's jurisdictional bar would apply ``retroactively,'' and that 
it ``likely would prevent the Supreme Court from ruling on the merits 
of the Hamdan case.'' (151 Cong. Rec. S12799.) Almost immediately after 
these words, Senator Durbin also commented on the revised Graham 
amendment. He stated:


[[Page S972]]



       The Graham-Levin substitute amendment would somewhat 
     improve the underlying amendment by expanding the scope of 
     review in the D.C. Circuit Court to include whether CSRT's 
     are legal, but not whether a particular detainee's detention 
     is legal. It would also allow for post-conviction review of 
     military commission convictions. However, the amendment would 
     still eliminate habeas review and overrule Rasul.

  (151 Cong. Rec. S12799.) Again, no suggestion was made that the new 
amendment might carve out pending cases, despite the Senator's 
expressed concern about retroactivity. The Senator gave no hint that he 
expected the new amendment to treat pending cases any differently than 
did the old amendment. Senator Durbin does not appear to have been 
misled about the effect of the final Graham amendment, nor did he 
mislead anyone else.
  To be sure, two statements that do appear in the Record prior to the 
final vote on the Graham amendment both assert that the amendment would 
not ``strip jurisdiction''--and both of these statements are unleavened 
by Senator Levin's accompanying clarification that pending cases would 
proceed under the substantive review standards of the new law. Both of 
these statements, however, appear to have been introduced into the 
record following the final vote--both refer to that vote in the past 
tense. Neither Senator thus could have misled other Members about the 
effect of the amendment prior to the vote. Senator Kerry made clear in 
his statement that his remarks were made only after the November 15 
vote: ``Today, I voted in favor of Senator Bingaman's amendment No. 
2523, because it would have preserved judicial review . . . When the 
Bingaman amendment failed, I voted for a second-degree amendment.'' 
(151 Cong. Rec. S12799.) Similarly, Senator Reid also emphasized that 
his statement did not precede the actual vote: ``the Senate has voted 
to deny the availability of habeas corpus to individuals held by the 
United States at Guantanamo Bay, Cuba. I rise to explain . . . my votes 
in favor of the Bingaman amendment and the Graham-Levin amendment 
earlier today.'' (151 Cong. Rec. S12802.) Neither of these statements 
was part of the information that was presented to Senators prior to the 
final vote on the Graham amendment.
  To summarize, the legislative record is utterly devoid of any 
evidence that Senators were led to believe that the Graham/Levin/Kyl 
amendment would carve out pending cases. Prior to the vote, several 
Senators spoke of the original amendment's breadth and the fact that it 
would terminate pending cases. Senator Graham, drawing no distinction 
between pre- and post-enactment filers, stated that the revised 
amendment would apply a uniform standard to all 500 Guantanamo 
detainees. Senator Levin made clear that ``the standards we set forth 
in our amendment will be the substantive standards which we would 
expect would be applied in all cases, including cases which are pending 
as of the effective date of this amendment.'' Senator Specter pointedly 
warned that the final amendment would ``strip Federal courts of the 
authority to consider a habeas petition from detainees'' and ``even 
take[] away jurisdiction from the Supreme Court of the United States.'' 
Other Members who condemned the original amendment for terminating 
pending cases gave no hint that they viewed the new amendment any 
differently. Quite simply, there is no evidence that anyone misled 
anyone else about the fact that the Graham amendment would only allow 
pending cases to go forward under the limited review standards of the 
new law.
  On November 15, the Graham/Levin/Kyl amendment passed the Senate by a 
vote of 84-14. That same day, the entire Defense Authorization bill 
passed the Senate by unanimous consent and the Senate appointed 
conferees. One month later, on December 16, the House and Senate 
conferees agreed to file a conference report. In the days that 
followed, a new slew of statements were made in the Senate and even in 
the House commenting on the meaning of the Graham amendment. Many of 
these statements are simply the usual effort by the losers of 
legislative battles to rewrite legislative history. The majority of the 
Senators, for example, who announced in these statements that the 
Graham amendment was not intended to affect pending cases also were 
among the 14 Senators who voted against the final Graham/Levin/Kyl 
compromise. No one can seriously suggest that these members relied on 
any representations made by the backers of the amendment. And more 
importantly, given the marked disagreement between the statements that 
were made at this late stage about the effect of the amendment on 
pending cases, no one could justifiably have relied upon one view 
rather than another to learn what the amendment does. Rather, it is up 
to members to examine the actual language of the amendment.
  I hope that this review of the circumstances of the enactment of the 
Graham amendment will put to rest any accusation that members of 
Congress were misled about the amendment's impact on pending cases. 
Whether the amendment does in fact govern pending cases is another 
matter. For the reasons expressed here and in the January 18 letter to 
the Attorney General, I believe that it does so, but that, of course, 
is a matter for the courts to decide. In the event that the courts 
concur with my and Senator Graham's interpretation of the amendment, 
however, no Member should be heard to complain that they were led to 
believe that the amendment would operate differently.
  I ask unanimous consent that the letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:


                                                  U.S. Senate,

                                 Washington, DC, January 18, 2006.
     Hon. Alberto Gonzales,
     Attorney General, U.S. Department of Justice,
     Washington, DC.
       Dear Mr. Attorney General: We understand that the Justice 
     Department has been criticized recently in the press and by 
     members of Congress for asserting in court proceedings that a 
     provision in the Fiscal Year 2006 Defense appropriations bill 
     that regulates legal actions brought by Guantanamo 
     detainees--the so-called ``Graham Amendment''--affects 
     pending litigation. Critics contend that the Administration's 
     actions violate an agreement with Members of Congress by 
     arguing that the Graham Amendment makes no exception for 
     pending cases.
       We are the lead sponsor and an original cosponsor of the 
     Graham Amendment. We write to assure you that the attorneys 
     under your supervision have correctly interpreted the 
     disputed provision.
       The Graham Amendment states in relevant part that 
     ``effect[ive] on the date of enactment of this Act,'' except 
     pursuant to special review procedures specified in the Act, 
     ``no court, justice, or judge shall have jurisdiction to hear 
     or consider'' a habeas application or any other action 
     relating to the detention of a Guantanamo detainee. All 
     Members of the Senate had access to this language before the 
     Senate voted on the final Graham Amendment and the final 
     Defense appropriations bill. The language cannot reasonably 
     be construed to leave intact any power in the courts to 
     entertain the current barrage of habeas petitions and other 
     actions brought by Guantanamo detainees. The Defense 
     appropriations bill was signed into law on December 30, 2005. 
     As of that date, literally ``no court, justice, or judge'' 
     has jurisdiction to entertain these lawsuits. That is what we 
     intended.
       Had we intended to preserve some power in the courts to 
     continue to hear the current flurry of legal actions, we 
     would have done so. We did not. Moreover, as we made clear 
     when the final defense bill passed the Senate, we are well 
     aware that for over a century, American courts consistently 
     have interpreted legislation removing a court's jurisdiction 
     over a type of case to also remove its ability to hear 
     pending cases. Surely, this long line of precedent negates 
     any ambiguity as to the effect of the Graham Amendment on 
     pending cases.
       We also note that a contrary interpretation of the 
     Amendment's effect would be inconsistent with the structure 
     of the Amendment. As mentioned above, other sections of the 
     Graham Amendment create special standards and procedures for 
     judicial review of the detention and trial of Guantanamo 
     detainees. The Amendment also states that these special 
     standards and procedures shall apply not only to relevant 
     claims filed after enactment, but also those ``pending on . . 
     . the date of the enactment of this Act.'' (Emphasis added.) 
     Obviously, no claim pending at the time of enactment sought 
     to invoke the review standards created by the same Act. This 
     provision calls on the courts and parties to construe pending 
     actions that challenge either the fact of detention or a 
     military trial as requests for review pursuant to the special 
     standards in the new law. And just as obviously, if all 
     pending lawsuits were exempted from the new law, no pending 
     case would be governed by the new review standards. To adopt 
     the construction advocated by the critics--that courts retain 
     jurisdiction to continue to hear all current lawsuits in 
     their current form--would render the statutory language 
     applying the new standards to pending cases a dead letter.
       The original Graham-Kyl Amendment stated that its 
     jurisdiction-removing provisions

[[Page S973]]

     ``apply to [actions] pending on or after the date of the 
     enactment of this Act.'' This language later was replaced 
     with language specifying that the Amendment ``shall take 
     effect on the date of the enactment of this Act.'' There were 
     two reasons for this substitution: first, the jurisdiction-
     removing provision technically does not apply any new 
     standards to the pending cases. Rather, it eliminates the 
     forum in which those cases can be heard. Second, the original 
     language ``applying'' jurisdiction removal to pending cases 
     appeared to require that those cases be dismissed outright. 
     Such a result would have conflicted with subparagraph (h)(2), 
     which is designed to allow current cases to continue in the 
     D.C. Circuit as requests for review pursuant to the new 
     standards. Altering the effective-date language eliminated 
     this internal inconsistency and clarified that, rather than 
     requiring that pending cases be dismissed, the new law allows 
     the courts to construe those cases as requests for review 
     under the new standards and, where necessary, transfer them 
     to the appropriate forum.
       This is all that we intended by this modification of the 
     Graham Amendment's effective-date language and, more 
     importantly, this is all that the language does. Nothing in 
     this modification preserves any jurisdiction in the courts to 
     continue the current actions in their present form after the 
     date of the enactment of the Act.
       To the extent that anyone construing the Graham Amendment 
     might be tempted to subordinate actual statutory text to 
     expressions of Senators' private intent, two points are in 
     order: first, we are two of the three cosponsors on the 
     ``Graham-Levin-Kyl Amendment'' that was introduced in the 
     Senate on November 14, and one of us is the lead sponsor. 
     Both of us made clear in the Congressional Record at the time 
     that the final law passed the Senate that we understood, in 
     light of standard rules of statutory construction, that 
     removal of jurisdiction would eliminate pending cases--the 
     same interpretation now espoused by the Justice Department.
       In addition, on November 14, the other cosponsor of the 
     amendment, Senator Levin, stated that ``[w]hat our Amendment 
     does, as soon as it is enacted and the enactment is 
     effective, it provides that the substantive standards we set 
     forth in our Amendment will be the substantive standards 
     which we would expect would be applied in all cases, 
     including cases which are pending as of the effective date of 
     this Amendment.'' 151 Cong. Rec. 12755. He also stated that 
     day: ``the standards in the Amendment will be applied in 
     pending cases.'' Ibid. The effective-date and pending-claims 
     language in the Amendment introduced on November 14 is 
     identical to that in the enacted statute. Thus, on the day of 
     introduction, all three original cosponsors of the Graham 
     Amendment understood it to operate in the same way: the 
     pending Guantanamo cases can go forward, but only under the 
     special review standards and procedures established by the 
     Amendment.
       Finally, we should comment on the various other legislative 
     statements purporting to explain the intent behind the Graham 
     Amendment. By our count, at least nine Members of the 
     minority have introduced statements in the Congressional 
     Record announcing that the Graham Amendment was meant to have 
     no effect on pending litigation. For the record, the only one 
     of these Members who played any role in crafting the 
     Amendment is Senator Levin. Negotiations with Senator Levin 
     resulted in a substantial expansion of the scope of the 
     judicial review permitted under the special review procedures 
     established by the Amendment. None of the other Members 
     commenting on the intent behind the Amendment's effective-
     date subsection played any significant drafting role of which 
     we are aware. Indeed, some of these minority Members who 
     purport to define the authorial intent also complain that the 
     Amendment was ``negotiated largely behind closed doors by the 
     White House and a select few majority Members of Congress'' 
     (151 Cong. Rec. 12201), or that ``all negotiations on this 
     provision have occurred in back rooms, without the 
     involvement of the vast majority of Congress, and without 
     even consulting most of the conferees.'' 151 Cong. Rec. 
     14170. Such complaints are not consistent with the 
     ``insider'' perspective that these Members purport to share 
     with the reader. Several of these Members also are among the 
     14 Senators who even voted against the final Graham-Levin-Kyl 
     Amendment when it was offered in the Senate on November 15. 
     Clearly, it would be inappropriate to allow those who opposed 
     the amendment to define the intent of the authors of the 
     amendment.
       Of course, more important than any private intent harbored 
     by any Member of Congress is the actual legislative text that 
     was passed by both houses of Congress and signed into law by 
     the President. As we noted previously, absent repudiation by 
     the federal courts of over a century of precedent construing 
     like statutes, the Graham Amendment unambiguously eliminates 
     the federal courts' power to hear Guantanamo detainees' cases 
     in their current form. Notwithstanding the accusations made 
     by some critics, your litigators have, in our view, properly 
     interpreted the Graham Amendment. And, at the end of the day, 
     we anticipate that the courts will make these jurisdictional 
     determinations in accord with their own rules, procedures, 
     precedent, and the plain language of the statute.
           Sincerely,
     Lindsey O. Graham,
     U.S. Senator.
     Jon Kyl,
     U.S. Senator.

     

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