Friday, July 07, 2006

On the Cutting Room Floor

It has been a short week with the July 4 holiday and Congress in recess.

Not that the latter precluded shameful – maybe the right word is “shameless” – antics of the kind that prolongs its low place in public esteem. The story first broke in Slate and then was picked up John Dean in his column for Findlaw.

That the Bush administration fabricated or “cherry-picked” much of the intelligence used to persuade the Congress to authorize the president to use military force against Saddam Hussein is indisputable. It is also “rational” from the historical standpoint that in the struggle for dominance between the executive and legislative branches, one or the other will gain temporary ascendancy. But this deception of Congress was perpetrated by two of its own, not only against the Senate but against the judiciary.

Over the last two years, the status and treatment of prisoners held at Guantanamo Bay have been clarified via court rulings, especially two issued by the Supreme Court: Rasul v. Bush in June 2004 and Hamdan v. Rumsfeld in June 2006. Congress also weighed in with “debate” and legislation in the form of the “Detainee Treatment Act” (DTA) signed by President Bush December 30, 2005. The DTA contained, inter alia, the McCain anti-torture amendment opposed by the White House and an amendment originally sponsored by Senators Jon Kyl (AZ) and Lindsey Graham (SC) that proposed restricting the ability of prisoners at Guantanamo Bay to appeal their detention and the conditions of their detention in federal court. The limitations would not only apply to future appeals but also retroactively to cases already accepted by the courts.

The Kyl-Graham amendment was introduced, “debated,” and passed in one afternoon – the day before the Veterans holiday in 2005 – despite objections by Senator Arlen Specter (PA), the Senate Judiciary Committee chair, and many Democrats. When the Senate reconvened, a modified amendment was proposed and supported by Senator Carl Levin (MI). It removed the retroactive feature of the original amendment, and with this removed the modification passed 84-14.on November 14.

The Kyl-Graham-Levin amendment, as it was now called, survived the rough and tumble politics of the conference committee whose results in the form of a single bill and the accompanied conference report emerged December 21 and was approved and sent to the president for signature. Although the committee report is not part of the law, it can be important should the meaning and the intent of Congress in passing the law be a feature of future litigation. The report is included with the approved legislation and any debate on the agreed legislation in the official Congressional Record for each day one or both Houses are in session. When it was issued for December 21, the Senate record contained a rather lengthy exchange between Kyl, Graham, and Senator Sam Brownback (KS) as to the applicability of the law to cases already before the courts. Not only was the discussion’s tenor the exact opposite of what Senator Levin told his colleagues on November 14, the discussion never happened.

Congress-watchers know that Members routinely seek and are allowed to “correct and amend” remarks for the Congressional Record. Many also insert papers, speeches, or other materials that they did not have the opportunity to deliver orally from the floor. But when an insertion of completely new material is made, the Member indicates to the Record’s editors that the material was not originally presented “live” on the floor.

The Kyl-Graham lengthy “explanation” of legislative intent contained no such signal.

But there is more. In February 2006 Kyl and Graham filed an amicus (friend of the court) brief in the Hamdan v. Rumsfeld case that had finally reached the Supreme Court. The brief not only effectively disavowed the Levin modification, it also made repeated, specific references to the “discussion” that never occurred and – as with the insertion in the Congressional Record – did not in any way inform the Court that the “debate” never happened. Hamdan’s attorneys made that discovery and informed the Court.

At least publicly, the Supreme Court seems to have decided to let the deceit slide – even though the Senators tried to re-introduce the same brief in the appeals court the following month (another “find” by Slate). John Dean’s view is straightforward: “I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.”

Yet the country wonders why, every week, new allegations are made accusing U.S. service personnel of war crimes and torture. U.S. officials, particularly those standing for reelection, like to talk about values. They might do better if they talked about facts and practiced their “values.”

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