Slate's Jurisprudence: Senate's Link to Hamdan

U.S. Senate testimony connected to the case of Osama bin Laden's driver, Salim Ahmed Hamdan, may play a role in U.S. Supreme Court proceedings Tuesday over Hamdan's legal challenge to military tribunals at the military detention facility at Guantanamo Bay, Cuba. Alex Chadwick discusses the case with Slate senior editor Emily Bazelon.

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ALEX CHADWICK, host:

A big wrinkle in the Hamdan case is that Congress passed a law late last year to restrict the jurisdiction of courts over this kind of case. What's not clear is whether that law was supposed to apply to existing cases, like today's. And to determine that both sides in the Hamdan case have looked for clues in the record of the debate in Congress.

But Slate's Emily Bazelon discovered the record includes a transcript of a key exchange on the Senate floor that did not actually happen. Emily Bazelon joins us now. Emily, welcome back to the show. And first of all, the Congressional record is full of all kinds of things that didn't happen on the floor of Congress.

Ms. EMILY BAZELON (Senior Editor, Slate): Yes, it turns out that it's quite easy to put something into the record. You sign the statement, you write live on it, you hand it off to an aide, and in it goes. What surprised me when I was looking into this story is that there is no way in looking at the record to tell what's live and what's not. There are some statements that come with a bullet next to them, and those are not live. But you can also have a statement that's not live that has no bullet. So there's really no way to distinguish.

CHADWICK: Okay, this particular colloquy is cited in a friend of the court brief that two Senators, John Kyle of Arizona and Lindsey Graham of South Carolina, submit to the court on the government's side in this case. And they site this colloquy, what happens here?

Ms. BAZELON: Well, in the colloquy they go on at some length about their understanding of this law. And they make it very clear in the colloquy that they think the law does apply to Hamdan. That would mean that the Supreme Court would not have any jurisdiction to hear this case. And since they're co-sponsors of the bill, these are Republicans who helped draft it, that view would seem to carry some weight.

CHADWICK: Colloquy in this case means a discussion between two members of the Senate on the floor of the Senate taking place before the Senate. That's how these remarks were inserted into the record. But in fact that conversation never took place.

Ms. BAZELON: No, and in fact it didn't. Although the colloquy is scripted to sound as if it were live. At one point Kyle says, I see that we are nearing the end of our allotted time. And at another point, Senator Sam Brownback of Kansas appeared to sort of interject a question. He starts by saying, if I might interrupt.

CHADWICK: So, what is important and significant here? People do change the Congressional record all the time, they insert things. But we called a Senate historian and asked him about this. He said, yeah, this is outside what you would say is normal practice, to say that this happened as part of the legislative history when it really didn't, and then to cite that in a brief to the Supreme Court, supporting your own argument.

Ms. BAZELON: Right, it's really, what's striking here is the slight of hand in terms of citing the colloquy as if it were live to the Supreme Court, which is certainly the implication of Kyle and Graham's brief that they filed to the Supreme Court. And the government also relies on the colloquy. And what's really at stake here is the legislative history of this law, because if the colloquy is not really part of the record, or doesn't seem kosher to cite, then all you have is a bunch of Democrats, particularly Carl Levin, who also cosponsored the legislation, talking about how the law absolutely does not apply to Hamdan, very clearly over and over again. And so the Republicans really needed this colloquy to have on a statement that was directly on point. Otherwise, Levin's interpretation of the law would be uncontested. And so that could sort of hold a lot of weight in front a court.

CHADWICK: Opinion and analysis from Emily Bazelon. She's a senior editor at the online magazine Slate. And you can read her article on the Senate debate that never happened at Slate.com. Emily, thank you for being back with us.

Ms. BAZELON: Thanks very much, Alex.

MADELEINE BRAND, host:

And DAY TO DAY attempted to reach the offices of Senators Kyle and Graham about the testimony, but they did not respond. A representative of Senator Sam Brownback said his office was examining the nature of the congressional testimony.

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