Will the Hamdan Case Turn on 21 Pages from the Congressional Record that Were Never Uttered?

Lyle Denniston offers this fascinating post at SCOTUSblog. It begins:

    In the few minutes that it took the Senate to complete passage of the Detainee Treatment Act last Dec. 21, little was said in the chamber beyond a round of congratulations for a job well done. But the Congressional Record for that very brief legislative effort now runs to 21 pages, with three columns of small print per page. And out of that Record of what was not said but nevertheless was recorded has emerged a debate that may go a long way to influence how the Supreme Court and the D.C. Circuit Court resolve the next big controversy arising out of the war on terrorism.
    That controversy, simply put, is whether the foreign nationals being held as terrorism suspects at Guantanamo Bay, Cuba, have any legal rights of any consequence. But there is a prelude to that controversy: the question of whether the courts have lost their jurisdiction to weigh a wide array of constitutional and international law challenges to U.S. treatment of those detainees.. The Detainee Treatment Act might scuttle all of those existing challenges — including Hamdan v. Rumsfeld (05-184), due to be argued next Tuesday in the Supreme Court — and replace them with a much more limited court review of military proceedings at the Cuba base.

As Lyle further explains:

    Final Senate consideration of the National Defense Authorization Act for Fiscal Year 2006 — containing the detainee law — was perfunctory; on Dec. 21. No one debated the meaning of any provision in the bill, and it won passage without a recorded roll-call vote. An audio recording of that part of the floor proceedings made by C-Span indicates no debate at all.
    But the Congressional Record shows that the discussion was extensive, indeed. The Record in that part opens with a statement by Sen. Carl Levin, a Michigan Democrat and one of the authors of the new detainee law. He argues that the final measure was not retroactive, and so did not strip the courts of jurisdiction over existing cases. The Bush Administration wanted that, but “we successffully opposed” the maneuver, Levin said.
    The Record then moves to a lengthy exchange between the new law’s two other key sponsors, Republican Sens. Lindsey Graham of South Carolina and John Kyl of Arizona. Kyl begins, and it sounds as if he is on the Senate floor: “I would like to say a few words” about the legislation, which he said “expels lawsuits brought by enemy combatants from United States courts.” He then comments, realistically: “I see that my colleague, the senior senator from South Carolina, is also on the floor.”

Fascinating.

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