Make no mistake about it, this is what happened. It was not business as usual. What U.S. Senators Kyl (Arizona), Graham (South Carolina) and Brownback (Kansas) did in faking legislative history of the Detainee Treatment Act was not usual Senate practice. Ordinary insertions to the Congressional Record are noted as such, these work. Ordinary insertions aren't in the form of a fake dialog, complete with interruptions, they are lengthy speeches or documents. And legislative history ordinarily takes place before the law is passed, rather than deceptively being added after the fact and represented as if it had taken place in advance of passage. And, legislatively history isn't normally presented by attorneys to a court specifically emphasizing the claim that it really happened when it didn't, these Senators had their lawyers do just this for them.
This time the Republican "make shit up" strategy didn't work.
The Supreme Court outed Kyl and Graham last week for their not-ready-for-real-time performance by bringing it up in a footnote in its decision in the landmark case Hamdan v. Rumsfeld.
“Those statements appear to have been inserted in the Congressional Record after the Senate debate,” Justice John Paul Stevens wrote. . . .
U.S. Senate historian Richard Baker told The Washington Post that the actions were unprecedented.
Former White House counsel John Dean, a key figure in the Watergate scandal, called it deceptive.
“Senators Graham and Kyl not only misled their Senate colleagues, but also shamed their high offices by trying to deliberately mislead the U.S. Supreme Court,” he wrote for the online publication FindLaw.com. “I have not seen so blatant a ploy, or abuse of power, since Nixon’s reign.”
It adds insult to injury when, upon being caught, the response is not contrition, but defiance.
These Senators need to be disciplined by the Senate Ethics Committee and their lawyers need to face serious professional ethics sanctions for dishonesty towards a tribunal. Defiantly deceiving the Courts is not acceptable.