Jul. 10, 2006 12:00 AM

It is "much ado about nothing."

That's Arizona Republican Sen. Jon Kyl's take on the controversy surrounding his and South Carolina GOP Sen. Lindsey Graham's submission to the U.S. Supreme Court of their fictitious Senate floor debate regarding treatment of Guantanamo Bay detainees.

"When people don't understand how the Senate works, they assume that only spoken words are important, somehow," Kyl said in an interview with The Arizona Republic on Thursday. "I'll give you a dollar if you can find a day in the Congressional Record when the Senate was in session where no material was inserted, as opposed to spoken."

Critics say that may be true. But they suggest the real issue is not the insertion of manufactured remarks into the official record of Congress.

Rather, they say, it is whether Kyl and Graham, both lawyers, then tried to mislead the Supreme Court by referencing their faked floor exchange in court papers as a way to bolster the government's efforts to dismiss a case involving the legal rights of detainees at Guantanamo.

"This bogus dialogue is ridiculous," John Dean, a former White House counsel under President Richard Nixon, said in an interview with The Republic.

Dean, who often writes on the law and government, also criticized what he calls Kyl and Graham's "deceptive" legal filing in a column for FindLaw, a popular law-related Web site.

The matter involves the government's claim that the Detainee Treatment Act, passed by Congress on Dec. 30 and signed by President Bush on Feb. 13, had stripped the federal courts of jurisdiction in cases where the detainees were challenging the grounds of their imprisonment.

The Kyl and Graham discussion was included as part of the government's case to show that Congress' intent in passing the act was to apply it retroactively to all pending detainee cases, despite claims by a Democratic co-sponsor, Sen. Carl Levin of Michigan, that this wasn't true.

Such judicial look-backs to Senate or House floor exchanges typically are used to help determine the legislative intent behind a bill when its wording may be ambiguous.

But in striking down the government's case June 29, Supreme Court Justice John Paul Stevens noted for the court's majority that Kyl and Graham's floor discussion, complete with a fake interruption by a third senator, and Kyl dialogue about their floor time running out, was inserted into the official record after the Senate debate had ended.

"All statements made during the debate itself support Senator Levin's understanding" of the bill, including that "the amendments will not strip the courts of jurisdiction over pending cases," Stevens wrote.

Stevens did not specifically rebuke Kyl and Graham. And it is true that written remarks by lawmakers often are submitted to the official Congressional Record.

But some legal experts, including Dean, say Kyl and Graham crossed an ethical line by indicating to the court that their feigned floor discussion actually occurred.

"I agree with Kyl when he says that extended remarks are frequently added to the (Senate) floor debate," Dean said. "But you don't turn around and use those in a court as representative of the legislative history. Particularly when you are spinning it 180 degrees from what the Senate actually did.

"I pay zero attention to Arizona politics so I have no idea how this will affect Kyl's Senate (re-election) race. But I can tell you that people are appalled by this."

Kyl defends his action. He also said he doesn't consider Stevens' ruling as any sort of rebuke.

"What (Stevens) was saying is as a matter of legislative intent, the written material is not as persuasive as that which is spoken," Kyl said.

Kyl said that if he were sitting on the Supreme Court with Stevens, he'd have posed several follow-up questions to the justice.

"I guess what I would have said if I was on the court with him is . . . 'Have you ever been in the Senate chambers when a speech is given? How many other senators are on the floor? None. OK, so how could it be the intent of the entire Senate with only one person speaking when there's no other senator sitting there?'

"It doesn't matter as a practical matter whether you speak the words or whether you insert them into the record. It is all part of the record of that debate."

There was no response on Friday from Stevens or his office.

-Billy House, Robbie
Sherwood and Chip Scutari