Unabashed

From Slate, and also heard on NPR's Day to Day, this revelation, that's still not in the papers...

In a nutshell, two GOP senators- Kyl and Graham- submit a brief in Hamdan, which was argued yesterday in the Supreme Court.

"It's not within the Supreme Court's power to decide the constitutional challenges brought by Salim Ahmed Hamdan, the Guantanamo detainee whose case [was] argued before the court [Tuesday] say Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz. In a brief they filed with the Supreme Court, they argue that Congress kicked Hamdan's current case out of court when it passed the Detainee Treatment Act last December.

The senators base their argument on the "legislative history" of the DTA—the official statements that members of Congress make about a bill leading up to its passage, as captured in the Congressional Record. In other words, Graham and Kyl cite themselves: in particular, an "extensive colloquy" between the two that appears in the Record on Dec. 21, 2005, the day of the DTA's passage.

Justice Department lawyers for the Bush administration rely on the same colloquy as evidence that "Congress was aware" that the DTA would strip the Supreme Court of jurisdiction to hear "pending cases, including this case" brought by the Guantanamo detainees.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains. Inserting comments into the Record is standard practice in Congress. What's utterly nonstandard is implying to the Supreme Court that testimony was live when it wasn't. The colloquy is evidence of what Kyl and Graham thought about the meaning of the DTA...

In their own brief to the court, Hamdan's lawyers said that Kyl and Graham's colloquy didn't take place on the floor of the Senate. As evidence, they cite the C-SPAN tape for the debate leading up to the Dec. 21 voice vote. Kyl and Graham don't appear. (See for yourself.) Senate officials confirm that the Graham-Kyl colloquy was inserted. When a senator wants to put a statement into the record, he or she signs it, writes "live" on it, and, with the routine consent of the rest of the body, into the record it goes.

That's not, however, what Kyl and Graham told the court. Their brief states that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet … or are underlined" (their italics). The colloquy appears in the record without a bullet or underline; ergo, the brief implies, it must be live. The colloquy is even scripted to sound live. "Mr. President, I see that we are nearing the end of our allotted time," Kyl says at one point. At another, Sen. Sam Brownback, R-Kan., appears to interject a question. "If I might interrupt," he begins..."

Why isn't this news? Two Senators attach a document to a Senate bill and disquise it to look like it was live, even inserting interruptions to make the lie look real.

Then they mislead the Supreme Court by implying- in a brief, as lawyers- that the testimony was indeed live. But it wasn't.

So, you have 2 U.S. Senators, aided by a third, trying to trick the highest court of the land into believing that something was said on the floor of the Senate when it wasn't. The Senators get caught red-handed and yet only readers of Slate and listeners to NPR's Day to Day hear about it?

Clinton twisted the word "is" in a deposition and got impeached. Two Senators feign legislative history to trick the Supreme Court and no paper or network covers it.

Sadly, I think Jon Stewart is our only hope to spread the word on this...