Senators’ briefs rejected
on Mar 31, 2006 at 12:12 pm
The D.C. Circuit Court, pondering the meaning of the court-stripping law passed late last year by Congress (the Detainee Treatment Act), has refused to accept three senators’ attempts to help shape the ruling. In a brief order Thursday, containing no explanation, the Circuit Court refused to allow the three key sponsors of the new law to file amici briefs in two packets of detainee cases now pending there (the lead case is Boumediene v. Bush, docket 05-5062). No one opposed the filing of those briefs. No other amicus briefs were turned aside.
The senators are Republicans Lindsey Graham of South Carolina and John Kyl of Arizona, who filed a brief together, and Democrat Carl Levin of Michigan.
There is an ongoing debate among those three as to the import of legislative history that the three of them created for the Congressional Record, but that did not actually occur on the floor of the Senate. The controversy centers on whether the Act was meant to withdraw the courts’ jurisdiction over already-pending detainee cases — an issue also before the Supreme Court in the case of Hamdan v. Rumsfeld (05-184). But a secondary controversy has arisen over a suggestion by the two GOP senators that their “colloquy” on the issue was a live exchange.
The Circuit Court’s order to return the briefs to the senators can be found here. The Court made it clear that it had first examined the briefs before ordering them returned.
Among possible explanations for the order are these:
First, the three judges on the panel regarded the senators as speaking only for themselves, so their briefs did not have the dignity of being a formal representation by the Senate itself, or by Congress.
Second, some or all of the judges are of the view that legislative history in general, or manufactured history of this kind, is unhelpful in determining Congress’ purpose in enacting the legislation.
Third, some or all of them were troubled by the attempt to cast the Graham-Kyl exchange as one that actually occurred on the floor prior to the final vote, and decided to push that brief aside, and did so, too, with Levin’s brief in order to appear to be even-handed.
The order, however, leaves open the possibility that the reconstructed senatorial “speeches” would still be considered by the panel, since the federal government’s brief relies upon the Graham-Kyl exchange as part of its argument that jurisdiction over detainee cases has been taken away.
An explanation, at least by implication, may only emerge when the panel decides the jurisdictional issue.
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