Manipulating the Record

Lawyers massage precedents, statutes and almost everything else in litigation. It's one of the reasons that they're so reviled, but, let's face it-- we've known for a while that interpretation is inherently and inescapably subjective. But yesterday Slate revealed legal manipulation that crosses the line into bad-faith, Jayson Blair land.

An issue complicating Hamdan is whether the Court has jurisdiction over it at all, given the Detainee Treatment Act that Congress passed in December. The DTA statute doesn't say clearly, reflecting the inability of legislators to agree. When a statute's implications are unclear, judges sometimes look to the law's legislative history-- ie, what Congresspeople said while introducing it, debating it and approving it. Thus, what is said and not said on the floor can be critical to divining the statute's purpose and, ergo, implications for a so-called enemy combatant's civil rights.

The Democratic sponsor of the DTA insisted, on the record, that the bill did not remove Hamdan from the Court's jurisdiction. The two Republican senators who co-sponsored the bill argue that it does, predictably enough. The problem is that the Republican sponsors didn't get their statements on the record, but inserted them after the bill was passed. In other words, they doctored the Congressional record after the fact. No legislator heard their arguments, and thus no one agreed, disagreed or debated on the record. But the governnment brief cites it, insistently, as evidence of legislative intent.

This is gross. I'd have gotten canned as a reporter if I'd done something like this.