[Congressional Record Volume 152, Number 18 (Tuesday, February 14, 2006)]
[Senate]
[Pages S1170-S1172]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEFENSE AUTHORIZATION, 2006
Mr. LEVIN. Last week, Senator Kyl placed a statement in the
Congressional Record regarding the Graham-Levin amendment, which was
enacted last year as section 1405 of the National Defense Authorization
Act for Fiscal Year 2006 and as section 1005 of the Detainee Treatment
Act of 2005, as included in the Department of Defense Appropriations
Act, 2006. Senator Kyl and Senator Reid cosponsored the Graham-Levin
amendment in the Senate.
Senator Kyl argues that this provision was intended to retroactively
strip the Federal courts, including the Supreme Court, of jurisdiction
over pending cases. Senator Kyl's statement attached a January 18,
2006, letter from Senator Kyl and Senator Graham to Attorney General
Gonzales, which makes the same argument.
As I stated when the Graham-Levin amendment was before the Senate and
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reiterated when the Senate adopted the conference report containing the
legislation, this is not the case. The statute that we enacted does not
retroactively strip the Supreme Court and other Federal courts of cases
over which they had already assumed jurisdiction at the time the
statute was passed.
I do not believe that the unexpressed intentions or after-the-fact
statements of Senators--Senator Kyl, myself, or anyone else--can change
the facts or the legislative history that existed at the time Congress
acted on a piece of legislation. The relevant considerations are the
language of the law itself, the changes that were made to that law as
it went through the drafting process, and what was clearly stated
before the bill was voted on by the Senate. I make this statement today
for the sole purpose of reiterating that history.
While section 1405(e)(1) provides that ``no court, justice, or judge
shall have jurisdiction to hear or consider an application for a writ
of habeas corpus,'' the applicability of this language to pending cases
is addressed in a separate provision--section 1405(h)--the structure
and history of which make it clear that the courts are not stripped of
cases over which they have already assumed jurisdiction.
Section 1405(h) clearly provides that only one portion of the act
applies to pending cases: sections (e)(2) and (e)(3), which govern
direct appeals from final decisions by military commissions and CSRTs.
The rest of the statute becomes effective ``on the date of enactment,''
which, as Justice Scalia has pointed out, ``is presumed to mean `shall
have prospective effect upon enactment,' '' Landgraf v. USI Films.
At Congressional Record page S970, Senator Kyl argues that the
original Graham amendment was never ``modified to carve out pending
litigation.'' He is incorrect. In fact, the amendment was modified, and
it was modified for the precise purpose of carving out pending
litigation.
The original Graham amendment specified that all provisions--
including the restrictions on habeas petitions--applied to pending
cases. On November 10, 2005, the original Graham amendment was debated
and adopted by the Senate by a vote of 49-42. At that time, I objected
to the Graham amendment's provision stripping jurisdiction in pending
cases. In fact, I explicitly urged at Congressional Record page S12,663
that we not adopt this amendment, in part, because ``It would eliminate
the jurisdiction already accepted by the Supreme Court in Hamdan.''
Because of my concerns, after the original Graham amendment was
adopted, I began working on a revised version of the amendment, which
became known as the Graham-Levin amendment. This new version removed
the language applying the habeas restrictions to pending cases, and
instead limited its retroactive effect only to the standards applicable
to direct appeals of final determinations that may have been made by
CSRTs or military commissions.
On November 14, 2005, Senator Graham and I introduced this new
version to the Senate together. In introducing the new Graham-Levin
amendment, Senator Graham did not specifically address the issue of the
amendment's effect on pending cases before yielding the floor to me. I
did address the issue. In particular, I explained to the Senate that
one of the principal reasons that so many of us voted against the prior
version of the amendment was its effect on pending cases and that this
problem had been addressed in the Graham-Levin amendment that was then
before us. I stated at Congressional Record page S12,755:
The other problem which I focused on last Thursday
[November 10] with the first Graham amendment was that it
would have stripped all the courts, including the Supreme
Court, of jurisdiction over pending cases. 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 strip the courts of jurisdiction over those cases.
For instance, the Supreme Court jurisdiction in Hamdan is
not affected. . . . I cosponsored the Graham amendment
with Senator Graham because I believe it is a significant
improvement over the provision which the Senate approved
last Thursday. . . . The direct review will provide for
convictions by the military commissions, and 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.
However, it does not strip the courts of jurisdiction.
Senator Graham took the floor again immediately after I concluded my
explanation of what our new amendment accomplished. He did not disagree
with my statement about the effect of the revised bill on pending cases
anywhere in his remarks. Indeed, neither Senator Graham nor Senator Kyl
said anything at that time to contest my very clear statement that the
new amendment did not retroactively strip the courts of jurisdiction
over pending cases.
When the Senate approved the Graham-Levin Amendment by a vote of 84
to 14 on November 15, 2005, I explained again at S12,802 that our
amendment would not strip the courts of jurisdiction over pending
cases:
The Graham-Levin-Kyl amendment would not apply the habeas
prohibition in paragraph (1) to pending cases. So, although
the amendment would change the substantive law applicable to
pending cases, it would not strip the courts of jurisdiction
to hear them. Under the Graham-Levin-Kyl amendment, the
habeas prohibition would take effect on the date of enactment
of the legislation. Thus, this prohibition would apply only
to new habeas cases filed after the date of enactment. The
approach in this amendment preserves comity between the
judiciary and legislative branches. It avoids repeating the
unfortunate precedent in Ex parte McCardle, in which Congress
intervened to strip the Supreme Court of jurisdiction over a
case which was pending before that Court.
Again, neither Senator Graham nor Senator Kyl offered a contrary
interpretation of the Graham-Levin amendment at that time.
The bill then went to a House-Senate conference. At this time, the
inapplicability of the jurisdiction-stripping provision to pending
cases was so clear that the administration's allies in the House tried
in vain to alter the language of the effective date provision to make
the jurisdiction-stripping provision apply retroactively to pending
cases, as it had in the original Graham amendment. I objected to this
language, and it was rejected by the Senate conferees.
At Congressional Record page S14,258, I explained this history when
the Senate adopted the conference report on December 21, 2005:
Under the Supreme Court's ruling in Lindh v. Murphy, 521
U.S. 320, the fact that Congress has chosen not to apply the
habeas-stripping provision to pending cases means that the
courts retain jurisdiction to consider these appeals. Again,
the Senate voted affirmatively to remove language from the
original Graham amendment that would have applied this
provision to pending cases. The conference report retains the
same effective date as the Senate bill, thereby adopting the
Senate position that this provision will not strip the courts
of jurisdiction in pending cases.
Let me be specific.
The original Graham amendment approved by the Senate
contained language stating that the habeas-stripping
provision `shall apply to any application or other action
that is pending on or after the date of the enactment of this
Act.' We objected to this language and it was not included in
the Senate-passed bill.
An early draft of the Graham-Levin-Kyl amendment contained
language stating that the habeas-stripping provision `shall
apply to any application or other action that is pending on
or after the date of the enactment of this Act, except that
the Supreme Court of the United States shall have
jurisdiction to determine the lawfulness of the removal,
pursuant to such amendment, of its jurisdiction to hear any
case in which certiorari has been granted as of such date'.
We objected to this language and it was not included in the
Senate-passed bill.
A House proposal during the conference contained language
stating that the habeas-stripping provision `shall apply to
any application or other action that is pending on or after
the date of enactment of this Act.' We objected to this
language and it was not included in the conference report.
Rather, the conference report states that the provision
``shall take effect on the date of the enactment of this
Act.'' These words have their ordinary meaning--that the
provision is prospective in its application, and does not
apply to pending cases. By taking this position, we preserve
comity between the judicial and legislative branches and
avoid repeating the unfortunate precedent in Ex parte
McCardle, in which Congress intervened to strip the Supreme
Court of jurisdiction over a case which was pending before
that Court.
As a result, the language sought by the administration and its
allies, which would have applied the jurisdiction-stripping provision
to pending cases, was not included in the final version of the bill.
It was not until after we concluded the conference and the conference
report passed the Senate on December 21,
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2005, that Senator Kyl placed a colloquy in the Congressional Record
arguing that Section 1005 should be interpreted to retroactively strip
the courts of jurisdiction over pending cases. At the same time, a
number of other Senators placed statements in the Congressional Record
stating their belief that the provision would not strip the courts of
jurisdiction over pending cases.
Those statements, coming as they did after the conclusion of the
conference and final action on the bill in both the House and the
Senate, carry no more weight as legislative history than the statement
that Senator Kyl placed in the Congressional Record last week or any
other after-the-fact statement in the Congressional Record. Both the
contemporaneous legislative history and the language and structure of
the Graham-Levin amendment itself demonstrate that this provision was
not intended to, and did not, retroactively strip the Federal courts of
jurisdiction over pending cases.
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