Kyl Dishonest About Being Dishonest

 Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case

John Kyle (AZ)(R)      Linsey Graham (SC)(R)


Kyl Dishonest About Being Dishonest - 7/7/2006

Claims submitting fabricated debates to mislead the Supreme Court and Senate colleagues is “no big deal”

PHOENIX — After a week of refusing to comment, Jon Kyl broke his silence about submitting a fabricated debate (or colloquy) into the Congressional record and then using the fictitious debate to mislead the US Supreme Court in a brief submitted on a high-profile national security case.

His excuse? Everybody does it. “It is no big deal to submit material for the record. It is done every day.”

But here Kyl is trying to mislead reporters about misleading the Supreme Court. Statements are indeed inserted in the Congressional Record after the actual debates occur, but Kyl went much further, crossing ethical lines. He fabricated a debate, which included banter and interruptions from another senator to try to fool the Supreme Court about the legislative intent of the Senate. In fact, the brief he submitted to the Supreme Court directly implies that the debate was live.

“Their brief states that ‘the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet...or are underlined’ (their italics). The colloquy appears in the record without a bullet or underline; ergo, the brief implies, it must be live.” [, 3/27/06]

Legal experts and historians have all said that Kyl’s fictional debate is not typical and has crossed ethical lines.

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

Former Nixon White House Counsel John Dean wrote that Kyl “engaged in a blatant scam” and that he and Sen. Lindsey Graham, R-S.C., “not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.”

Even U.S. Senate Historian Richard Baker said that Kyl’s actions were unprecedented.

“Jon Kyl is now not even being honest about his dishonesty,” Pederson spokesman Mark Bergman said.

“Kyl owes the Court, the U.S. Senate and the people of Arizona an apology for this fraud. Arizona voters must be asking themselves, if Kyl is willing to be dishonest with the highest court in the land, what lengths will he go to to misrepresent the truth in a political campaign?” site down

By Paul Giblin, Tribune

Sen. Jon Kyl not intend to deceive the U.S. Supreme Court
Fri Jul 7, 2006 20:20

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 “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, or phone (480) 970-2331

John Dean Book: Conservatives Without Conscience (press release), New Zealand - 21 hours ago
... John Dean was White House legal counsel to President Nixon for a thousand days. Dean also served as chief minority counsel for the ...

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Senators Kyl and Graham's Hamdan v. Rumsfeld Scam:
Fri Jul 7, 2006 21:09

Senators Kyl and Graham's Hamdan v. Rumsfeld Scam: The Deceptive Amicus Brief They Filed in the Guantanamo Detainee Case
Wednesday, Jul. 05, 2006

Last week, the Supreme Court issued its historic decision in Hamdan v. Rumsfeld. There, it dealt a substantial blow to the Bush/Cheney Administration's plans for the treatment of detainees at Guantanamo and, potentially, elsewhere as well - ruling out, for instance, the option of using military commissions without due process to try detainees.

The decision itself has been widely discussed. Less widely discussed, however, has been its backstory.

The Bush/Cheney Administration has been doing everything possible to keep its treatment of purported terrorist detainees out of the federal courts, particularly the Supreme Court. To assist the Administration, Republican Senators Lindsey Graham of South Carolina and Jon Kyl of Arizona engaged in a blatant scam that was revealed during the briefing of Hamdan.

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. Their effort failed. I have not seen so blatant a ploy, or abuse of power, since Nixon's reign.

To understand their ruse, a bit of background information about both the Hamdan case and the Detainee Treatment Act is necessary.

The Chronology Of The Hamdan Case

Salim Ahmed Hamdan is undoubtedly a bad fellow. Indeed, he is claimed to have once served as Osama bin Laden's driver and bodyguard. Hamdan was captured by tribal forces and turned over to the U.S. Military in November 2001, during the hostilities in Afghanistan against the Taliban. In June 2002, Hamdan was sent to Guantanamo.

In July 2003, the President designated Hamdan for trial by military commission, and in December 2003, Hamdan was given military counsel. In February 2004, Hamdan's attorneys filed an action under the Uniform Code of Military Justice (UCMJ) asking that formal charges be made against Hamdan, and that he be given a speedy trial. The U.S. military, however, held that the UCMJ did not apply.

Next Hamdan's attorney filed a petition for habeas corpus in federal court, to test the legality of his detention. That petition made its way from the state of Washington, where it was filed, to Washington, DC.

The Hoax Fails: The Supreme Court Is Not Fooled

Hamdan's lawyers, however, spotted the hoax. In their opposition to the motion to dismiss the case, they advised the Court that the supposedly conflicting legislative history was entirely invented after the fact, and that it consisted of "a single scripted colloquy that never actually took place, but was instead inserted into the record after the legislation had passed." The brief noted, quite accurately, that this Graham-Kyl colloquy was "simply an effort to achieve after passage of the Act precisely what [they] failed to achieve in the legislative process."

Ultimately, the Supreme Court did not decide the jurisdictional issue until it rendered its full ruling on June 29 of this year. There, Justice Stevens concluded correctly that the Congress had not stripped the Court of jurisdiction with the DTA.

Out of an apparent concern for interbranch comity, the High Court has chosen to ignore the bogus brief filed by Senators Graham and Kyl, rather than reprimanding the Senators. Nevertheless, when Graham and Kyl sought to file the very same brief, a month later, with the U.S. Court of Appeals for the District of Columba, Slate's Emily Bazelon reports that court "issued an unusual order rejecting" their amicus brief alone, although they accepted five others.

No one familiar with this remarkable behavior by Graham and Kyl can doubt why the court did not want to hear from these senators.

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In 2001 he published "The Rehnquist Choice: The Untold Story of the Nixon Appointment that Redefined the Supreme Court;" in early 2004, "Warren G. Harding," followed by "Worse Than Watergate: The Secret Presidency of George W. Bush." His newest book is "Conservatives Without Conscience."

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Ruling dismays Graham

U.S. Sen. Lindsey Graham, R-S.C., expressed disappointment Thursday in the Supreme Court’s decision against military trials at Guantanamo Bay. But he said he is already working with the White House to craft legislation that would give the administration the right to try suspected terrorists in military tribunals.

Graham, a judge in the Air Force Reserve, issued a joint statement with Sen. John Kyl, R-Ariz., with whom he has sponsored legislation to keep such suspects out of U.S. civilian courts.

Trying alleged terrorists in civilian courts “threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions,” they wrote.

The Supreme Court ruling also takes a swipe at Graham and Kyl.

Last year, as sponsors of the Detainee Treatment Act, the pair argued that the courts had no right to hear certain cases involving terrorism suspects. Making the arguments, they cited speeches they supposedly made on the Senate floor.

But it was discovered that the speeches were only made to look as if they were delivered to a live audience.

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

— Lauren Markoe

Democrats criticize Kyl's actions in filing Supreme Court brief
The Business Journal of Phoenix - 12:19 PM MST Thursday by Mike Sunnucks


 Jim Pederson
Democrats -- including U.S. Senate challenger and Phoenix-area shopping center developer Jim Pederson -- are going after Arizona Sen. Jon Kyl over his involvement in U.S. Supreme Court decision regarding detainees at Guantanomo Bay, Cuba.

The high court ruled against some Bush administration plans to try suspect terrorists housed at the U.S. Naval Base via military tribunals.

The criticism for Kyl arose when Justice John Paul Stevens wrote the majority opinion for the case. Stevens points out that a brief filed to the court by the Arizona Republican and U.S. Sen. Lindsey Graham, R-S.C., includes aspects of a congressional debate that never occurred.

Kyl and Graham's brief included congressional statements and a debate that was inserted into the official record after the debate on the issue on the U.S. Senate was complete.

Democrats and the Pederson camp contend Kyl and Graham were disingenuous in their statements to the court and were trying to influence the decision in their brief in Hamdan vs. Rumsfeld.

"If Jon Kyl is willing to mislead the Supreme Court, what would he be willing to do during a campaign," said Pederson campaign spokesman Mark Bergman.

Pederson, the former chairman of the Arizona Democratic Party, is challenging Kyl in this November's elections.

The Kyl camp has not commented on the flap, but points to Justice Antonin Scalia's dissent in the case. Scalia discounts the controversy over the post-debate remarks put in the record by Kyl and Graham, saying such things occur regularly in Congress and have little bearing on court decisions.

Kyl and Graham said in a statement after the decision they were disappointed in the ruling. But Kyl has not talked about the flap over their brief.

"We are disappointed with the Supreme Court's decision. However, we believe the problems cited by the Court can and should be fixed.

"It is inappropriate to try terrorists in civilian courts. It threatens our national security and places the safety of jurors in danger. For those reasons and others, we believe terrorists should be tried before military commissions." the two Republicans said in a statement.

Polls show Kyl leading Pederson in what is expected to be the most expensive campaign in state history.

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