Setting the Record Straight: More on the Deceptive Hamdan Brief

My suggested headline was "Kyl, Graham Still Haven't Set 'The Record' Straight" but the editor juiced it up a bit. Good for him. The editor put the last sentence of the sixth paragraph ("Nobody's saying [they can't fake it] although to regular people that looks, well, odd") as a bold box quote in the dead-tree version.

The brief itself is here; the passage at issue is on pages 16-17.

FOR THE RECORD, THIS CHARADE DOESN'T WORK
East Valley Tribune, July 23, 2006

Sen. Lindsay Graham, R-S.C. last week wrote an op-ed in The Tribune answering questions that nobody’s asking, and ignoring the actual, uncomfortable questions, regarding the now-infamous amicus brief that he and Sen. Jon Kyl filed with the U.S. Supreme Court in Hamdan v. Rumsfeld, last month’s the-president-is-not-above-the-law decision. (Hamdan didn’t say that terrorists have constitutional rights; it did say that the president needs to follow the Constitution, which says he’s the president, not “the decider.”)

We did learn from Graham that even his colleagues recognize that Jon Kyl is such a stiff that even his ad-libs must be fully scripted (“Mr. President, I see we are nearing the end of our allotted time.”) But none of the other senators who inserted written statements in the Congressional Record went through the charade of a fake conversation (“If I might interrupt”).

More importantly, none of those other senators have pretended that their written statements weren't inserted into the record and were delivered live. Only Graham and Kyl, in a terribly convenient omission, insisted that what never happened be "presumed" to be live.

Graham graciously allows that other senators’ written statements deserve due weight, just like his and Kyl’s. And that’s accurate; nobody is saying that Graham’s and Kyl’s written statements shouldn’t be considered just like written statements from other senators. But what critics are saying -- particularly other lawyers who understand their professional ethical obligations not to mislead any tribunal, much less the Supreme Court -- is that Graham and Kyl shouldn’t get away with pretending that their written statement, inserted in the Congressional Record after the fact, was better than everybody else’s.

However, that’s how they tried to portray it to the Supreme Court. In their amicus brief, they demanded special treatment because their written statement lacked the tell-tale written-statement bullet. Their brief instructed the Court that the Graham-Kyl written statement, inserted in the Record but not spoken, was bullet-less -- and therefore “presumed to reflect live debate except when the statements therein are followed by a bullet, indicating ‘statements or insertions which are not spoken by a Member of the Senate on the floor.’” [Emphasis in original] And, said the Kyl-Graham brief, at-the-time live debate is better than after-the-fact written statements.

That’s the other question that Graham’s op-ed never answered. Nobody says he and Kyl can’t insert stuff in the Congressional Record; that’s what it’s there for. Nobody’s saying that their written statements can’t be faked to look like an actual speech, although to regular people that looks, well, odd.

But Graham and Kyl simply can’t insert stuff in the Congressional Record, faked to look like actual live debate (or, if you buy Graham’s spin, written ahead of time, but then, oops! Out of time!), then omit the written-statement bullet, and then tell the Supreme Court that the statement should be given special weight because it is “presumed” to be live debate.

(Graham’s reference to an earlier debate, on a prior version of the amendment, is similarly deceptive. That debate revealed, in Graham’s words, that Sen. Levin had “made some very good points” about “weaknesses” in the original version, which Levin had helped to correct with the later version -- which included the point at issue in Hamdan. So the prior statements in the “extensive live debate” aren’t “consistent” because those statements concerned Graham’s earlier, weakness-containing version.)

It’s also fun that Kyl dismissed criticism of his deceptions by John Dean, calling him a convicted criminal. Of course, Dean pled guilty to helping Richard Nixon’s Watergate cover-ups and crimes. Does this mean that Kyl finally is willing to call Nixon a crook? It’s 30 years too late, but it still would be refreshing.

I guess America is now a country where, in the words of the head of the Justice Department’s Office of Legal Counsel, “The president is always right.” But if it’s now official GOP dogma that the Constitution is defunct, at least be honest about it -- instead of deceptive like Kyl and Graham.