[Congressional Record Volume 152, Number 106 (Thursday, August 3, 2006)]
[Senate]
[Pages S8779-S8780]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         DETAINEE TREATMENT ACT

  Mr. GRAHAM. Mr. President, I rise today to correct the public record 
with regard to a matter raised by the U.S. Supreme Court's decision in 
Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). In part II of its opinion, 
the majority in Hamdan addressed whether the Detainee Treatment Act 
barred Hamdan's lawsuit from proceeding in its then-present form. As 
the court noted, the DTA provides that ``no court, justice, or judge 
shall have jurisdiction to hear or consider'' claims filed by 
Guantanamo detainees, except under the review standards created by that 
act.
  In the course of drafting the DTA conference language regarding 
jurisdiction, Senator Kyl, myself, and several others we consulted, 
specifically relied on the Bruner line of cases for guidance. In that 
line of cases, we had taken particular note of Justice Stevens's 
opinion in Landgraf, where, in discussing the Bruner line, he wrote 
that the Court had a consistent practice of ordering an action 
dismissed when the jurisdictional statute under which that action had 
been filed was subsequently repealed. Since that was precisely what we 
were doing in the DTA, reversing the Rasul finding of jurisdiction 
through the habeas statute, we were very comfortable with how our 
language addressed the jurisdictional change.
  Likewise, the Bruner/Landgraf line of cases informed the enactment 
language regarding the substantive law changes we were making. Because 
of Justice Stevens's explanation in Landgraf, we felt we had to make 
those provisions specifically apply to pending cases. However, for 
everything else, including the requirements for the executive branch to 
do certain things within certain time periods, having a single 
enactment statement saying everything applied retroactively did not 
make sense. So, with that and other concerns, we ended up with what 
emerged from the conference process between passage of the amendment in 
November and adoption of the conference product in December. It was 
complicated and merged a number of concepts.
  You see, as the author of that part of the Detainee Treatment Act, it 
was never my intent to carve out pending cases from the effect of that 
act. As I have detailed above, we knew the governing law and expected 
the courts to apply it. And I never hid this intent or understanding. 
My statements regarding this intent were consistent from the beginning 
of the debate on November amendment until final passage of the 
conference report on December 21. This is why I issued a joint 
statement with Senator Levin in early January of this year which 
stated, ``[t]he intent of the language contained within the Graham-
Levin-Kyl amendment is that Courts will decide in accord with their own 
rules, procedures and precedents whether to proceed in pending cases.''
  In reviewing the record, Justice Scalia and the other dissenters 
recognized this consistency. Justice Scalia stated that, ``[s]ome of 
the statements of Senator Graham, a sponsor of the bill, only make 
sense on the assumption that pending cases are covered.'' Thus, they 
correctly concluded that the jurisdictional removal language included 
all pending cases.
  Indeed, when the final version of the DTA passed the Senate, I and 
some of the cosponsors of my November amendment included a colloquy in 
the Record in which we made clear that we were perfectly aware of the 
Supreme Court's previous holdings governing jurisdiction-removing 
statutes and that we had not chosen the language of the amendment by 
accident. We had initially intended to explain our provisions of the 
DTA on the floor, but with time growing short, and rather than forcing 
our colleagues to listen as we droned on, we dropped the statement into 
the Record and everyone went home for the Christmas break.
  The Hamdan majority addressed this statement in footnote 10 of its 
opinion. First, the Court noted that on November 15, ``Senator Levin 
urged adoption of an alternative amendment [the final version of my 
amendment] that `would apply only to new habeas cases filed after the 
date of enactment.' '' The Court then dismissed my own statement of 
views in the following passage:

       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, see 151 
     Cong. Rec. S14263-S14264 (Dec. 21, 2005), those statements 
     appear to have been inserted into the Congressional Record 
     after the Senate debate. See Reply Brief for Petitioner 5, n. 
     6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) 
     (``I would like to say a few words about the now-completed 
     National Defense Authorization Act for fiscal year 2006'' 
     (emphasis added)). 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).

  There are three misstatements of fact in footnote 10 of Hamdan that I 
would like to publicly correct. First, the colloquy that Senator Kyl 
and I submitted for the Record was not submitted after the Senate's 
consideration of the bill. It was submitted well before the final vote 
on the conference report, and was necessary due to the substantial 
changes we made between the adoption on the amendment on November 15 
and the adoption of the conference report on December 21.
  Second, I have had a member of my staff view the tapes of the 
Senate's deliberations on November 15 that were prepared by the Senate 
Recording Studio. These tapes confirm that the statement from Senator 
Levin that the Supreme Court quoted from that day was not made live, 
but instead appears to have been submitted for the Record.
  And third, my staff has viewed the tapes of the Senate's 
deliberations on December 21. These tapes confirm that the statements 
to which the Supreme Court cites from that day, statements by Senators 
Leahy, Durbin, and Feingold, also were not spoken live on the Senate 
floor but were instead submitted for the Record. As I will discuss 
later, it generally doesn't matter to me if a statement is live or not, 
but it does bear noting the distinction given the Court's focus on it 
in this case.
  The Supreme Court appears to have been misled about the nature of the

[[Page S8780]]

legislative statements regarding the Detainee Treatment Act. The court 
dismissed my and Senator Kyl's statements on the basis that they were 
submitted for the Record. Instead, it relied on statements where it 
thought Senator Levin had publicly ``urged'' other members to accept 
his view, and on statements that it believed had been spoken live 
``during the debate itself' on December 21.
  In reality, there was no ``debate itself' on the Detainee Treatment 
Act on December 21.
  The final Defense authorization conference report was adopted by a 
voice vote at 10 p.m. Of the 35 pages of the Congressional Record 
accompanying the final passage of that Act, virtually none of it was 
spoken live on the Senate floor. Nothing regarding the DTA was said 
live on December 21. In other words, the statements that Senator Kyl 
and I submitted for the Record and that the Hamdan majority dismissed 
are identical in nature to all of the statements from November 15 and 
December 21 that the Hamdan majority quoted and cited in support of its 
construction of the DTA.
  I should emphasize that although the Supreme Court was misled, I do 
not believe that it was misled by any of my colleagues. I believe that 
Senators Levin, Leahy, Durbin, and Feingold acted entirely 
appropriately by submitting statements for the Record regarding their 
interpretation of the DTA. As I mentioned, the Senate considered the 
final Defense bill that contained the DTA late in the evening four days 
before Christmas. Although the Senators who submitted statements for 
the Record had every right to delight their colleagues with 6 hours of 
speeches and debate at that hour, I am certain that every member of the 
Senate appreciated the fact that these statements were submitted for 
the Record instead.
  Where does the Court's mistake spring from then? The Supreme Court's 
mistake about the legislative history of the DTA appears to have been 
created by briefs filed by Mr. Neal Katyal, the counsel of record for 
Mr. Hamdan in the Supreme Court. Much of the Hamdan majority's analysis 
of the DTA and its legislative history appears to have been adopted 
verbatim from these briefs. Mr. Katyal's brief, for example, wrongly 
asserts that the colloquy between Senator Kyl and me was ``inserted 
into the Record after the legislation passed.'' Although statements for 
the Record must be submitted on the same day that they are to appear in 
the daily edition of the Record, no public record is kept of when 
exactly a particular statement was submitted. Mr. Katyal could not 
possibly have known whether my colloquy with Senator Kyl was submitted 
before or after final passage of the bill, unless he had asked me or my 
staff, which he did not do. Had he done so, we would have happily 
informed him that our statement was submitted hours before final 
passage. Yet he asserted to the Supreme Court that it was submitted 
``after the legislation passed,'' a misstatement that the Supreme Court 
apparently believed and that it repeated in its majority opinion.
  Mr. Katyal's brief also asserts that my colloquy with Senator Kyl was 
``entirely post hoc,'' and that Senator Kyl and I ``waited until the 
ink was dry'' to submit our views. However, his brief's extensive 
citations to those December 21 statements that favored petitioner 
Hamdan are not accompanied by similar bold disclaimers.
  Indeed, the very statements of Senators Leahy, Durbin, and Feingold 
that the Supreme Court believed had been made ``during the debate 
itself' appear to have been brought to the court's attention by Mr. 
Katyal's brief. That passage of the brief makes no mention of the fact 
that these statements were not spoken live on the Senate floor. The 
brief also quotes at length from the same statement by Senator Levin on 
November 15 from which the Supreme Court later quoted in its opinion. 
Not only does the brief fail to warn the reader that this statement was 
not spoken live, the brief even asserts that ``[e]vidence of reliance 
on Senator Levin's statement was immediate,'' and it cites to a 
statement by Senator Reid that refers to Senator Levin's views.

  I can see how a reasonable person would understand this passage to 
mean that Senator Levin's and Senator Reid's statements were spoken 
live on the Senate floor. The brief conjures up a scene of one Senator 
listening to another Senator speak and then ``immediately'' rising to 
express his agreement. Yet that scene never took place. Neither Senator 
Levin's nor Senator Reid's remarks were made live on the Senate floor.
  In the usual case, I do not think that an attorney would have a duty 
to tell a court whether the Senate floor statements that he is citing 
are live or not. Indeed, most attorneys would have no way of knowing 
whether a particular statement is live. Under Senate rules, submitted 
statements that pertain to pending Senate business are presumed to be 
live statements and are automatically included in the Record among live 
debate. In my opinion, this is critical to the effective and efficient 
functioning of the Chamber. I am confident that my colleagues would 
agree with me.
  Here, however, Mr. Katyal made a point of seeking to discredit 
statements in the Congressional Record on the basis that they had not 
been spoken live. Given that he stressed the introduction of some 
statements, I believe it was incumbent on him to inform the Court that 
the statements on which he relied also were not spoken live.
  I should again emphasize that I do not criticize any of my colleagues 
in the Senate. Senators Levin, Leahy, Durbin, and Feingold's actions 
were entirely honorable and aboveboard. Indeed, Senators Leahy, Durbin, 
and Feingold, as well as others who opposed the DTA had every right to 
have their opinions, thoughts, and intent recorded, both in November 
and in December.
  In closing, I would also like to express my concern about the 
soundness of the distinction that the Hamdan majority drew between live 
and submitted statements. Although the reality of Senate floor debate 
is not quite as unflattering as what Justice Scalia suggests in his 
dissent, it is true that live speeches made by Senators are not always 
heard by other Members. Senate floor debate is only one of the many 
sources of information on which Senators rely when deciding how to cast 
their votes. Other than when Senators express agreement with one 
another through a colloquy or by expressly referring to each other's 
views, Senate floor statements should not be understood to represent 
the understandings and intentions of anyone other than the Member 
making the statement. Nor should the courts assume that Senators are 
unaware of court precedent and rules of construction.
  I hope that this statement will prevent further mischaracterization 
of the legislative record of the Detainee Treatment Act. Senators 
Levin, Leahy, Durbin, and Feingold's December comments on the act are 
all entitled to consideration, but no more so than mine or Senator 
Kyl's. The Supreme Court was misled in Hamdan, and it appears to have 
based its decision, at least in part, on a simple mistake of fact. That 
is a result that all those who respect the democratic process and the 
rule of law should regret.

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