Statement of Senator Carl Levin Regarding Graham-Levin Amendment on Habeas Corpus

Last week, Senator Kyl placed a statement in the Congressional Record regarding the Graham-Levin amendment, which was enacted last year as Section 1405 of the National Defense Authorization Act for Fiscal Year 2006 (and as section 1005 of the Detainee Treatment Act of 2005, as included in the Department of Defense Appropriations Act, 2006). Senator Kyl and Senator Reid co-sponsored the Graham-Levin amendment in the Senate.

Senator Kyl argues that this provision was intended to retroactively strip the federal courts, including the Supreme Court, of jurisdiction over pending cases. Senator Kyl’s statement attached a January 18, 2006 letter from Senator Kyl and Senator Graham to Attorney General Gonzales, which makes the same argument.

As I stated when the Graham-Levin amendment was before the Senate and reiterated when the Senate adopted the conference report containing the legislation, this is not the case. The statute that we enacted does not retroactively strip the Supreme Court and other federal courts of cases over which they had already assumed jurisdiction at the time the statute was passed.

I do not believe that the unexpressed intentions or after-the-fact statements of Senators – Senator Kyl, myself, or anyone else – can change the facts or the legislative history that existed at the time Congress acted on a piece of legislation. The relevant considerations are the language of the law itself, the changes that were made to that law as it went through the drafting process, and what was clearly stated before the bill was voted on by the Senate. I make this statement today for the sole purpose of reiterating that history.

While section 1405(e)(1) provides that “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus,” the applicability of this language to pending cases is addressed in a separate provision – section 1405(h) – the structure and history of which make it clear that the courts are not stripped of cases over which they have already assumed jurisdiction.

Section 1405(h) clearly provides that only one portion of the Act applies to pending cases: sections (e)(2) and (e)(3), which govern direct appeals from final decisions by military commissions and CSRTs. The rest of the statute becomes effective “on the date of enactment,” which as Justice Scalia has pointed out, “is presumed to mean ‘shall have prospective effect upon enactment.’” Landgraf v. USI Films 511 U.S. 244, 288 (1994) (Scalia, J., concurring).

Senator Kyl argues that the original Graham amendment was never “modified to carve out pending litigation.” 152 Cong. Rec. S970. He is incorrect. In fact, the amendment was modified, and it was modified for the precise purpose of carving out pending litigation.

The original Graham amendment specified that all provisions—including the restrictions on habeas petitions—applied to pending cases. On November 10, 2005, the original Graham amendment was debated and adopted by the Senate by a vote of 49-42. At that time, I objected to the Graham amendment’s provision stripping jurisdiction in pending cases. In fact, I explicitly urged that we not adopt this amendment, in part, because “It would eliminate the jurisdiction already accepted by the Supreme Court in Hamdan.” 151 Cong. Rec. S12,663-64.

Because of my concerns, after the original Graham amendment was adopted, I began working on a revised version of the amendment, which became known as the Graham-Levin amendment. This new version removed the language applying the habeas restrictions to pending cases, and instead limited its retroactive effect only to the standards applicable to direct appeals of final determinations that may have been made by CSRTs or military commissions.

On November 14, 2005, Senator Graham and I introduced this new version to the Senate together. In introducing the new Graham-Levin amendment, Senator Graham did not specifically address the issue of the amendment’s effect on pending cases before yielding the floor to me. I did address the issue. In particular, I explained to the Senate that one of the principal reasons that so many of us voted against the prior version of the amendment was its effect on pending cases, and that this problem had been addressed in the Graham-Levin amendment that was then before us. I stated:

“The other problem which I focused on last Thursday [November 10] with the first Graham amendment was that it would have stripped all the courts, including the Supreme Court, of jurisdiction over pending cases. What we have done in this amendment, we have said that the standards in the amendment will be applied in pending cases, but the amendment will not strip the courts of jurisdiction over those cases. For instance, the Supreme Court jurisdiction in Hamdan is not affected . . . . I cosponsored the Graham amendment with Senator Graham because I believe it is a significant improvement over the provision which the Senate approved last Thursday . . . . The direct review will provide for convictions by the military commissions, and because it would not strip courts of jurisdiction over these matters where they have taken jurisdiction, it does, again, apply the substantive law and assume that the courts would apply the substantive law if this amendment is agreed to. However, it does not strip the courts of jurisdiction.”

Id. at S12,755 (emphasis added).

Senator Graham took the floor again immediately after I concluded my explanation of what our new amendment accomplished. He did not disagree with my statement about the effect of the revised bill on pending cases anywhere in his remarks. Indeed, neither Senator Graham nor Senator Kyl said anything at that time to contest my very clear statement that the new amendment did not retroactively strip the courts of jurisdiction over pending cases.

When the Senate approved the Graham-Levin Amendment by a vote of 84-14 on November 15, 2005, I explained again that our amendment would not strip the courts of jurisdiction over pending cases:

“The Graham-Levin-Kyl amendment would not apply the habeas prohibition in paragraph (1) to pending cases. So, although the amendment would change the substantive law applicable to pending cases, it would not strip the courts of jurisdiction to hear them. Under the Graham-Levin-Kyl amendment, the habeas prohibition would take effect on the date of enactment of the legislation. Thus, this prohibition would apply only to new habeas cases filed after the date of enactment. The approach in this amendment preserves comity between the judiciary and legislative branches. It avoids repeating the unfortunate precedent in Ex parte McCardle, in which Congress intervened to strip the Supreme Court of jurisdiction over a case which was pending before that Court.” 151 Cong. Rec. S12,802. Again, neither Senator Graham nor Senator Kyl offered a contrary interpretation of the Graham-Levin amendment at that time.

The bill then went to a House-Senate conference. At this time, the inapplicability of the jurisdiction-stripping provision to pending cases was so clear that the Administration’s allies in the House tried in vain to alter the language of the effective date provision to make the jurisdiction-stripping provision apply retroactively to pending cases, as it had in the original Graham amendment. I objected to this language and it was rejected by the Senate conferees.

I explained this history when the Senate adopted the conference report on December 21, 2005:

“Under the Supreme Court’s ruling in Lindh v. Murphy, 521 U.S. 320, the fact that Congress has chosen not to apply the habeas-stripping provision to pending cases means that the courts retain jurisdiction to consider these appeals. Again, the Senate voted affirmatively to remove language from the original Graham amendment that would have applied this provision to pending cases. The conference report retains the same effective date as the Senate bill, thereby adopting the Senate position that this provision will not strip the courts of jurisdiction in pending cases.

“Let me be specific.

“The original Graham amendment approved by the Senate contained language stating that the habeas-stripping provision ‘shall apply to any application or other action that is pending on or after the date of the enactment of this Act.’ We objected to this language and it was not included in the Senate-passed bill.

“An early draft of the Graham-Levin-Kyl amendment contained language stating that the habeas-stripping provision ‘shall apply to any application or other action that is pending on or after the date of the enactment of this Act, except that the Supreme Court of the United States shall have jurisdiction to determine the lawfulness of the removal, pursuant to such amendment, of its jurisdiction to hear any case in which certiorari has been granted as of such date’. We objected to this language and it was not included in the Senate-passed bill.

“A House proposal during the conference contained language stating that the habeas-stripping provision ‘shall apply to any application or other action that is pending on or after the date of enactment of this Act.’ We objected to this language and it was not included in the conference report.

“Rather, the conference report states that the provision “shall take effect on the date of the enactment of this Act.” These words have their ordinary meaning – that the provision is prospective in its application, and does not apply to pending cases. By taking this position, we preserve comity between the judicial and legislative branches and avoid repeating the unfortunate precedent in Ex parte McCardle, in which Congress intervened to strip the Supreme Court of jurisdiction over a case which was pending before that Court.”

151 Cong. Rec. S14,258. As a result, the language sought by the Administration and its allies, which would have applied the jurisdiction-stripping provision to pending cases, was not included in the final version of the bill.

It was not until after we concluded the conference and the conference report passed the Senate on December 21, 2005 that Senator Kyl placed a colloquy in the Congressional Record arguing that Section 1005 should be interpreted to retroactively strip the courts of jurisdiction over pending cases. At the same time, a number of other Senators placed statements in the Congressional Record stating their belief that the provision would not strip the courts of jurisdiction over pending cases.

Those statements, coming as they did after the conclusion of the conference and final action on the bill in both the House and the Senate, carry no more weight as legislative history than the statement that Senator Kyl placed in the Congressional Record last week or any other after-the-fact statement in the Congressional Record. Both the contemporaneous legislative history and the language and structure of the Graham-Levin amendment itself demonstrate that this provision was not intended to, and did not, retroactively strip the federal courts of jurisdiction over pending cases.