http://www.azcentral.com/arizonarepublic/news/articles/0329scotus-colloquy0329.html
Senators' fictitious testimony clouds case
Dan Eggen Washington Post Mar. 29, 2006 12:00 AM
WASHINGTON - According to the official Congressional Record of Dec. 21, 2005, Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz., held a long conversation on the Senate floor about an amendment bearing Graham's name that restricts the legal rights of detainees in the military prison in Guantanamo Bay, Cuba.
"I agree entirely," Graham responds to Kyl at one point. Kyl says later, "I have just been handed a memorandum on this subject." Another Republican senator, Sam Brownback of Kansas, interrupts the two with his own commentary.
But those exchanges never actually occurred. Instead, the debate, which runs 15 pages and brims with conversational flourishes, was inserted into the Congressional Record minutes before the Senate gave final approval to the legislation.
In legal briefs to the Supreme Court, which took up the issue Tuesday, the Justice Department cites the material as evidence that Congress intended the Detainee Treatment Act to retroactively invalidate pending legal challenges by hundreds of detainees held in Guantanamo Bay. Graham and Kyl themselves submitted a friend-of-the-court brief asserting the same thing.
Some Democrats, including Sen. Carl Levin, D-Mich., whose name is also on the amendment to the law, have argued otherwise.
The inserted floor debate, known in Senate parlance as a "colloquy," has since become an intriguing side issue in the case of Salim Ahmed Hamdan, Osama bin Laden's former driver, whose case was at issue Tuesday before the court.
Hamdan's attorneys complained about the colloquy in a recent legal filing, and the provenance of Graham's and Kyl's comments has drawn recent attention on legal Web sites and Slate.com.
The briefs filed in support of the government do not make clear that the Graham-Kyl debate was manufactured.
In their friend-of-the-court brief, filed in February, Graham and Kyl note that the "Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet ... or are underlined ..."
The Graham-Kyl exchange is not marked in either way, though a C-SPAN recording and other records make clear that the discussion never happened.