Kyl defends bogus brief
By Paul Giblin, Tribune
July 7, 2006

Sen. Jon Kyl said Thursday he did not intend to deceive the U.S. Supreme Court by submitting a fabricated discussion into the Congressional Record.

He defended his actions, however, saying he and others have done it before.

“Every senator has done it. It is no big deal to submit
material for the record. It is done every day,” he told the Tribune on Thursday.

It was the first time Kyl spoke publicly about his role in filing a legal brief to the nation’s highest court that cited a faked Senate discussion.

The matter hinges on what appears to be a transcript of a live discussion on the Senate floor on Dec. 21, 2005, between senators Kyl of Arizona, Lindsey Graham of South Carolina and Sam Brownback of Kansas.

They appeared to be speaking about the Detainee Treatment Act, which in part dealt with the limits of legal rights extended to terrorism suspects being detained at Guantanamo Bay, Cuba.

However, the scripted exchange never occurred.

The transcript of the bogus discussion was submitted into the official Congressional Record after the actual debate had concluded.

Then in February, Kyl and Graham cited the unspoken conversation in a brief to the Supreme Court as an example of the legislative intent behind the act.

The Supreme Court outed Kyl and Graham last week for their not-ready-for-real-time performance by bringing it up in a footnote in its decision in the landmark case Hamdan v. Rumsfeld.

“Those statements appear to have been inserted in the Congressional Record after the Senate debate,” Justice John Paul Stevens wrote.

The justices frequently turn to the Congressional Record to gauge the intent of lawmakers who drafted the laws in question.

Legal experts said they rarely see senators go to that extent to make the dialogue appear real.

“If it’s done in order to persuade the court that the Senate meant something that maybe it didn’t mean, which I think it was done for, that’s more than trivial,” said Arizona State University law professor Paul Bender, who has argued more than 20 cases before the high court.

U.S. Senate historian Richard Baker told The Washington Post that the actions were unprecedented.

Former White House counsel John Dean, a key figure in the Watergate scandal, called it deceptive.

“Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court,” he wrote for the online publication FindLaw.com. “I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.”

In the court case, the nation’s highest court ruled 5-3 that President Bush’s plan to try Guantanamo Bay detainees in military tribunals violated U.S. and international law.

The justices determined that Congress had not given Bush authority to create military tribunals for Salim Ahmed Hamdan, a former driver for terrorist Osama bin Laden, and the other detainees.

Kyl rejected the “notion” that Stevens called out the senators for the phony discussion about whether the act would apply to the Guantanamo Bay detainees.

“What he was trying to say, I guess, is if people don’t say it on the floor of the Senate, how can it be legislative intent? Well, that’s a fundamental misunderstanding of how the Senate works. Much of what senators say or mean is never spoken orally on the Senate floor,” Kyl said.

The three senators scripted their 12,000-word conversation and originally had intended to enact it on the Senate floor during the live debate, Kyl said.

“It was written to be spoken and there wasn’t time to speak it, so we simply submitted it. It would have been the same whether we spoke it or what was inserted in the record,” Kyl said.

The staged interruptions and question-and-answer exchanges among the three senators were intended to make the presentation interesting, said Kyl, an attorney who previously has been mentioned as a Supreme Court nominee.

Kyl, who spoke about the submission after a news conference about forest management, dismissed Dean’s rebuke.

“Well, coming from him, he would know about underhanded. That’s the first thing I would say,” Kyl said. “But secondly, it shows a fundamental misunderstanding about how the Senate works. Don’t take my word for it. Ask anybody how the Senate operates.”

But Bender said it’s serious business to base a court brief on the illusion that the Senate debate was live.

“Just putting a statement in is not serious, because that doesn’t manufacture anything that didn’t happen — it’s just your statement. But here you’re trying to make your views more persuasive than they should be by suggesting that you stated them on the floor and the other side heard them and seemed to agree with your point on what the meaning was,” he said.

The ASU professor represented the U.S. on behalf of the Office of the Solicitor General in all the cases he argued before the Supreme Court.

“It’s a tradition of that office to be absolutely straight with the court about everything. You can make an argument, but you don’t distort anything,” he said.

“To do something like this, I think, is, from the court’s point of view, something that’s horrible,” Bender said.

Contact Paul Giblin by email, or phone (480) 970-2331