Members of Congress are allowed to tamper with the record, and this time, it may have legal consequences
U.S. Sen. Harry Reid of Nevada and other senators are being accused of winning a U.S. Supreme Court decision by tampering with the Congressional Record. But they say it is the losers in that court case who did the tampering.
Almost no one is asking why tampering with the Record is permitted at all.
The court case at issue is Hamdan v. Rumsfeld, which involved Salim Ahmed Hamdan, taken prisoner by the United States in Afghanistan, shipped to Guantanamo, and charged with conspiracy to commit war crimes by acting as Osama bin Laden’s driver and attending training.
The court decision announced June 29 ruled that the trial procedures were less than fair, the crime with which the Bush administration charged him is not a war crime, and there was no reasonable procedure for appeal. Hamdan could be held, the court ruled, but procedures for trying him must rely on the rule of law, not procedures created solely by the executive branch.
In the court’s decision, Justice John Paul Stevens addressed the legislative history of the Detainee Treatment Act approved by Congress to determine whether the Hamdan case was made void by Congress’ passage of the DTA. He consulted the debates in the Congressional Record and noticed that some of them appeared to have been inserted into the Record after the debate ended. He noted that a long dialogue between Senators Jon Kyl and Lindsay Graham contained the phrase “the now completed National Defense Authorization Act” which seemed to date that dialogue weeks after the debate took place in the Senate hall (though before the final vote on the DTA). Kyl and Graham had filed a friend of the court brief in which they quoted themselves “during” the debate as saying that the DTA applied to pending cases ("As Senators Graham and Kyl explained in an extensive colloquy …").
On the other hand, comments such as those of Sen. Carl Levin of Michigan argued that the DTA did not apply to pending cases, and his comments appear to have been made in a more timely fashion and were, in fact, the heart of the debate. Kyl and Graham remained silent during that debate, if they were in the hall.
The statement inserted by Reid was this: “I agree with Senator Levin that his amendment does not divest the Supreme Court of jurisdiction to hear the pending case of Hamdan v. Rumsfeld. I believe the effective date provision of the amendment is properly understood to leave pending Supreme Court cases unaffected. It would be highly irregular for the Congress to interfere in the work of the Supreme Court in this fashion, and the amendment should not be read to do so.” His statement was placed on the record on Nov. 15, five days after Levin’s. Kyl and Graham put their material in the record on Dec. 21.
Last week, National Review editor Ramesh Ponnuru posted an online column that argued that Stevens had been taken. (National Review is a conservative magazine founded by William F. Buckley Jr.) He wrote, “But Stevens has it wrong. None of the statements he cites—on either side of the issue—was made during floor debate. … They take Levin’s statements to have occurred in real time. They even quote Senator Harry Reid’s remarks agreeing with Levin to support the claim that '[e]vidence of reliance on Senator Levin’s statement was immediate.’ But Reid’s statement, too, was inserted into the record after the debate.”
The dispute set off a round of scrutiny of the debates among bloggers and other online denizens, as well as traditional media entities. Many of them argued that there was a difference between what Kyl and Graham did and what Levin and Reid did. The Levin et al. statements were filed promptly. The Kyl et al. statements were filed at the last minute several weeks later just before the final vote and appeared to be an effort to create a record for litigation purposes. But more than that, the Kyl/Graham insertion into the Congressional Record took an unusual form.
It was written by the senators (or, more likely, by their staff members) to sound like a dialogue. The dramatists who composed it included plot twists, new characters and interruptions. “If I might interrupt,” Sen. Sam Brownback of Kansas said—or rather, did not say. At another point, Kyl didn’t say, “I have just been handed a memorandum on this subject.” This drama was 12,000 words long and was spread over 15 pages of the Record.
Kyl and Graham avoided commenting on the issue, but as they were portrayed as having been slapped down by the court for doctoring the record, both finally responded to newspapers in their home states. Both used the “everybody does it” defense, and both avoided the issue of submitting material for the record in dialogue rather than statement form—and its timing.
“I understand that this may seem strange to someone unfamiliar with the Senate’s operations,” Graham wrote in an essay in the Charleston Post and Courier in South Carolina. “But it is certainly not unethical or even unusual as some have suggested.”
“Every senator has done it,” Kyl told the Scottsdale Tribune. “It is no big deal to submit material for the record. It is done every day.”
But the Senate’s official historian, Richard Baker, said it is not done every day. He told the Washington Post that while insertions of formal statements into the record are common, inventing a dialogue is rare.
Graham is likely right about one thing: Members of the public would be surprised to know that the Congressional Record is not a faithful record of what happens. Events that do happen often vanish from the Record, and events that did not happen appear in its pages. Some observers believe that most of the “debates” recorded in the Record are bogus.
There have been disputes about tampering with the record for most of U.S. history. One senator even resigned over the issue. In 1836, when legislatures still elected senators, Sen. John Tyler resigned rather than obey the Virginia Legislature’s directive that he vote to expunge a censure of Andrew Jackson from the record: “I dare not touch the Journal of the Senate. The Constitution forbids it. In the midst of all the agitations of party, I have heretofore stood by that sacred instrument.”
But there are also procedures for designating which material in the record is live and which is invented. There is no method for policing whether those procedures are used—each lawmaker polices him- or herself—but Kyl and Graham did not use them.