Manufacturing Legislative History

Back in the glory days of Newt Gingrich, the House enacted a rule that would limit revisions to the Congressional Record to correct mistakes in grammar, typographical errors, and other such "flyspeck" matters. Any additions to the live debate would be typographically distinguished so that it would be crystal clear if the language had been added after the fact. No more would legislators be able to rewrite the record from whole cloth and have it go unnoticed by future legislative history researchers.

A story in today's Washington Post puts researchers on notice that Congress is up to its old tricks. According to the article, the transcript of a fifteen-page floor debate between Senators Lindsey Graham and Jon Kyl that never took place was inserted into the Congressional Record for December 21, 2005, and is now being cited by the Justice Department in its brief to the Supreme Court in the Hamdan case. Interestingly, there is nothing in the issue to indicate that the language was added after the fact, although a C-SPAN recording reveals that the debate never took place. Here's the article, which I intend to share with my Advanced Legal Research students when we discuss legislative history in the next few weeks:

Record Shows Senators' 'Debate' That Wasn't

By Dan Eggen
Washington Post Staff Writer
Wednesday, March 29, 2006; Page A06

According to the official Congressional Record of Dec. 21, 2005, Sens. Lindsey O. Graham (R-S.C.) and Jon Kyl (R-Ariz.) held a long conversation on the Senate floor about an amendment bearing Graham's name that restricts the legal rights of detainees in the military prison at Guantanamo Bay, Cuba.

"I agree entirely," Graham responds to Kyl at one point. "I have just been handed a memorandum on this subject," Kyl says later. Another Republican senator, Sam Brownback of Kansas, interrupts the two with his own commentary.

But those exchanges never occurred. Instead, the debate -- which runs 15 pages and brims with conversational flourishes -- was inserted into the Congressional Record minutes before the Senate gave final approval to the legislation.

In legal briefs to the Supreme Court, which took up the issue yesterday, the Justice Department cites the material as evidence that Congress intended the Detainee Treatment Act to retroactively invalidate pending legal challenges by hundreds of detainees held at Guantanamo Bay. Graham and Kyl submitted a friend-of-the-court brief asserting the same thing.

Some Democrats, including Sen. Carl M. Levin (Mich.), whose name is also on the amendment to the law, have argued otherwise. They contend that the law was written to allow cases filed before its enactment to go forward.

The inserted floor debate, known in Senate parlance as a "colloquy," has since become an intriguing side issue in the case of Salim Ahmed Hamdan, Osama bin Laden's former driver, whose case was at issue before the court yesterday.

Hamdan's lawyers complained about the colloquy in a recent legal filing, and the origin of Graham's and Kyl's comments has drawn recent attention on legal Web sites and on Slate.com. The subject did not come up during yesterday's Supreme Court argument, which focused on broader issues.

The briefs filed in support of the government do not make clear that the Graham-Kyl debate was manufactured. In their friend-of-the-court brief, filed in February, Graham and Kyl note that the "Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet . . . or are underlined."

The Graham-Kyl exchange is not marked in either way, although a C-SPAN recording and other records make clear that the discussion never happened.

Members of the House and Senate routinely insert lengthy statements into the Congressional Record without uttering them on the floor or anywhere else. But Senate historian Richard Baker said that colloquies -- contrived debates between two or more lawmakers -- are relatively rare. Baker said he could not recall another example that included feigned banter of the type found in the Graham and Kyl debate.

David H. Remes, a Washington lawyer who has helped Hamdan's defense team, called the colloquy "outrageous."

"This colloquy is critical to the government's legislative history argument, and it's entirely manufactured and misrepresented to the court as having occurred live on the Senate floor before a crucial vote," Remes said.

Representatives from Kyl's and Graham's offices did not respond to telephone messages yesterday. A spokesman for Levin and a spokesman for the Justice Department declined to comment.