The U.S. Supreme Court heard oral arguments yesterday in the Hamdan case. One key issue is whether the 2005 Detainee Treatment Act ("DTA") divests the federal courts of jurisdiction to hear Hamdan's challenge to his detention. In support of the Bush administration's position, Senators Lindsay Graham (R-SC) and John Kyl (R-AZ) submitted an amicus brief, in which they contend that Congress intended the DTA to do just that. In that brief, Graham and Kyl cite what they claim was their colloquy during debate on the Senate floor.
However, it appears that the alleged Graham-Kyl "colloquy" is a fiction -- something they concocted and inserted into the Congressional Record after the fact. There's actually nothing improper about that in itself. Members of Congress commonly ask for, and are granted, permission to "revise and extend" their remarks to include things they never actually say in debate. What is entirely improper is misleading the U.S. Supreme Court about the genesis of this "colloquy", and using this manufactured "evidence" in support of a strained construction, wholly unsupported by the statutory text.
Senators Graham and Kyl are both lawyers, and as such are subject to the ethical standards of the legal profession. These include a duty of candor toward the tribunal before which a lawyer appears. See Model Rules of Professional Conduct, Rule 3.3(a)(1) ("A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.").
If, as seems to be the case, Graham and Kyl knowingly misrepresented the nature of their supposed "colloquy", they should be subject to disciplinary action by the bar. Let's see Graham -- who served as one of the lead figures in the Clinton impeachment -- explain why lying to the U.S. Supreme Court about legislative business is OK, but lying about a blowjob is a high crime or misdemeanor.
(Cross-posted from Reports from Poisonville.)
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