Opinio Juris

(1) Did Justice Stevens make a mistake in his analysis of the floor debates?
Yes- Point here goes to Ponnuru. In footnote 10 of Hamdan, Justice Stevens dismisses the Dec. 21 statements of Senators Graham and Kyl as having been inserted into the record after the floor debate was over. But he then goes on in the next sentence to cite a bunch of Democratic statements as having been made during the debate on the other side. This is simply a mistake. All of the Dec. 21 statements cited by Stevens, on both sides, were inserted into the record, and did not take place “live”. Therefore, Stevens was wrong to single out the Graham-Kyl exchanges as less reliable than the other Dec. 21 statements.

(2) Did Hamdan’s lawyers mislead Justice Stevens into making this mistake?

No. Point here goes to Bazelon. This is Ponnuru’s charge, but I just don’t see it. Hamdan lawyer’s brief does contain an inaccuracy when it describes the Graham-Kyl discussion as “inserted into the record after the legislation was passed.” This is not quite right, but Stevens did not pick up on this anyway, accurately describing the Graham-Kyl exchange as inserted “after the debate.”

More importantly, the Hamdan lawyers’ brief does cite lots of stuff from November 15, as well as publicly available materials between that date and Dec. 21. They did not rely heavily or even mainly on those inserted December 21 statements by Democrats. Their larger point seems unrebutted: based on whatever public debate was occurring, there was no evidence that the DTA would apply retroactively.

(3) Was the Graham Kyl insertion an unusually unreliable piece of legislative history?

Probably. It is unseemly to insert a “fake” discussion into the record. What makes it particularly sketchy is that Graham and Kyl tried to then use this “fake” discussion in a brief, claiming or implying that it was “live” in some way. Bazelon is right to beat up on Graham-Kyl for their brief, although not for their insertion of their views into the record.

(4) So who’s right?
Ponnuru is right that Stevens’ opinion contains a mistake, but he is wrong, in my view, to attribute that mistake to the Hamdan lawyers’ brief, which mostly emphasized pre Dec. 21 statements.

Bazelon is right to dump on Graham and Kyl for trying to manipulate legislative history rather shamelessly, especially in their submission to the court. It would be helpful if she would have acknowledged though, that both sides played this game of manipulation and that Justice Stevens really did make a mistake.

The larger picture: Stevens got a little sloppy or confused on a point that has no serious significance to the outcome of the case. Stevens had plenty of reasons to find the DTA non-retroactive. In my view, there are plenty of other reasons to criticize Stevens, much more monumental reasons, which I will present in an article I should be working on now instead of blogging more on this. I'm sure the debate will go on though.