It appears that two, maybe three, Republican Senators should be thrown in jail for filing a perjurious brief before 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 will be argued before the court tomorrow, 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.
There is just a slight problem with the representation of the facts that Senators Kyl and Graham gave…
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.I called Brownback’s office
to ask if he’d given this testimony live on the Senate floor. “Yes, it was live,” an aide told me. I said that I’d been told otherwise by Senate staffers and mentioned the C-SPAN tape. “Let me call you back, “the aide said. She never did. Nor did Kyl or Graham’s press reps.
In my opinion, this is sufficiently unethical, and probably sufficiently illegal, that Senators Kyl, Graham, and Brownback should be stripped of their offices and face criminal charges.
To intentionally submit a false and misleading brief to the Supreme Court is simply unacceptable.
