[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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