Jeff Groharing email on USA v. Khadr -- date redacted -- 1

RE: US v. Khadr - Special Request for Relief relating to D022 - Defense MTD for Lack of Jurisdiction (Child Soldier)

Sir,

1. The Prosecution opposes the Defense's special request for relief.

2. Senator Graham's personal observations, made in response to a newspaper inquiry nearly 16 months after the enactment of the Military Commission Act of 2006 ("MCA"), provide no support for the Defense's attempt to bar jurisdiction in this case. The Supreme Court has specifically rejected the relevance of similar after-the-fact comments, holding that "'post-enactment legislative history is not only oxymoronic but inherently entitled to little weight.'" Massachusetts v. E.P.A., 127 S. Ct. 1438, 1460 n.27 (2007) (quoting Cobell v. Norton, 428 F.3d 1070, 1075 (D.C. Cir. 2005)); accord Friends of Earth, Inc. v. E.P.A., 446 F.3d 140 (D.C. Cir. 2006). Indeed, even where such comments are formalized in a Senate report, the D.C. Circuit has nonetheless held that they have "absolutely no significance" when they are uttered after a statute's enactment. U.S. ex rel. Long v. SCS Business & Technical Institute, Inc., 173 F.3d 870, 879 (D.C. Cir. 1999) (emphasis added).

3. Thus, it is a bedrock principle of statutory interpretation that "[p]ost-enactment views of those involved with the legislation should not be considered when interpreting the statute." 2A Norman J. Singer, Statutes and Statutory Construction § 48:20, at 488 (6th ed. 2000) (emphasis added). That conclusion applies a fortiori where (as here) the comments were not made within the halls of Congress and were not part of any legislative record. See also id. § 48:16, at 481 ("[P]ost-enactment statements made by a legislator as to legislative intent do not become part of the legislative history of the original enactment.").

4. The Defense's request is particularly problematic because it is based on a news article that may or may not accurately reflect Senator Graham's views-which, as explained below, Senator Graham himself has subsequently clarified. Given the unreliability of isolated comments wrenched from their proper context, the Supreme Court has refused to "abandon altogether the text of the statute" in order to "give effect to [a] snippet of legislative history." Shannon v. United States, 512 U.S. 573, 583 (1994). See also Garcia v. United States, 469 U.S. 70, 78 (1984) (holding "snippets" of legislative history cannot "alter the clear language of the statute"); accord Agri Processor Co., Inc. v. NLRB, --- F.3d ---, 2008 WL 53879, *6 (D.C. Cir. Jan. 4, 2008). Again, that proposition applies a fortiori to snippets of comments (such as Senator Graham's) that are not part of the MCA's legislative history (or any legislative history, for that matter).

5. Moreover, even if Senator Graham's statements were part of the MCA's legislative history, they would be irrelevant. As the Supreme Court has made clear, to the extent legislative history is relevant at all, courts should rely upon committee reports-not the comments of a single legislator. See, e.g., Garcia v. United States, 469 U.S. 70, 76 (1984). Thus, "a lone legislator is not competent to testify about the intent of a statute, even if he or she authored it." Statutes and Statutory Construction, supra, § 48:12, at 464. The Military Judge should therefore reject the Defense's attempt to rely upon post-enactment legislative "history" spoken by a single Senator under unknown circumstances.

6. As the Government explained in its brief and oral argument, the text and structure of the MCA-which provide the authoritative indicia of Congress's intent-affirmatively indicate that Congress's use of the word "person" creates military commission jurisdiction over all unlawful enemy combatants, regardless of age. The Defense can point to nothing in the MCA's legislative history that casts doubt on that conclusion-even assuming that the legislative history is somehow relevant, which it is not. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) ("[W]e have repeatedly held [that] the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms.").

7. Moreover, even if Senator Graham's comments to a journalist were somehow relevant to the issue before the military commission, the selected quotations offered by the Defense at best indicate only Senator Graham's personal opinion regarding whether the United States should try juveniles by military commission-not whether the United States can prosecute juveniles before military commission under the Military Commissions Act. Therefore, even taking those comments on their own terms, they do not bar jurisdiction in this case.

8. If anything, Senator Graham's personal views undermine the Defense's argument. As the attached statement makes clear, Senator Graham never intended to suggest that the MCA precludes jurisdiction in this case. The attached statement-unlike the Defense's newspaper article-includes Senator Graham's full and complete comments on the subject. And the attached statement demonstrates, unequivocally, that the Defense has misconstrued Senator Graham's position.

9. It also bears emphasis that Senator Graham has long recognized that Khadr is not a common criminal who might otherwise enjoy access to federal court and the protections (such as the Juvenile Delinquency Act) that apply in federal court. During the legislative debate over the Detainee Treatment Act, Senator Graham specifically mentioned Khadr's case as the very first example of one that he intended to exclude from federal court:

If you want to give a Guantanamo Bay detainee habeas corpus rights as a U.S. citizen, not only have you changed the law of armed conflict like no one else in the history of the world, I think you are undermining our national security because the habeas petitions are flowing out of that place like crazy. There are 500-some people down there, and there are 160 habeas corpus petitions in Federal courts throughout the United States. Three hundred of them have lawyers in Federal court and more to follow. We cannot run the place. They are not entitled to this status. They are not criminal defendants. And here is what they are doing in our courtrooms:

A Canadian detainee who threw a grenade that killed an army medic in a firefight and who came from a family of longstanding al-Qaida ties moved for preliminary injunction forbidding interrogation of him or engaging in cruel, inhumane, or degrading treatment of him. It was a motion to a Federal judge to regulate his interrogation in military prison.

151 Cong. Rec. S12656 (Nov. 10, 2005).

Senator Graham rationalized excluding GTMO detainees, such as Khadr, from federal court in part because GTMO detainees, such as Khadr, may be "prosecuted for violations of the law of war, not criminal violations in terms of domestic criminal law but violations in terms of the law of war." Id. at S12655-56. Unlike Senator Graham's comments to the Wall Street Journal-which may or may not have been taken out of context-his statements on the floor of the United States Senate are specifically directed at Khadr and are included in their entirety in the public record.

10. Moreover, to the extent Senator Graham's statements to the press are relevant, the Military Judge should consider the Senator's press releases, which, again, include his comments in their entirety and specifically mention Khadr's case. After the Senate passed the "Graham Detainee Plan," Senator Graham issued a press release that used Khadr as the very first example of a detainee that Senator Graham specifically intended to exclude from federal court. See Press Release, Senate Passes Graham Detainee Plan, Nov. 10, 2005, available at http://lgraham.senate.gov/public/.

11. Thus, to the extent the Military Judge imputes any weight to Senator Graham's individual views, three conclusions are inescapable: First, prior to the MCA's passage, Senator Graham knew that Khadr was detained at Guantanamo Bay and was liable to be prosecuted for war crimes. Second, Senator Graham intended that Khadr-whom the Senator specifically mentioned-would not have access to federal courts, where provisions such as the JDA apply. And third, Senator Graham never intended to suggest that Khadr fell outside of the MCA's jurisdictional ambit.

12. The Defense's request for special relief therefore must be denied.

13. On an administrative note, please add Mr. Oldham (andy.oldham@usdoj.gov) and Mr. Goldstein (jordan.a.goldstein@usdoj.gov) to your email lists. V/R, Jeff Groharing Major, U.S. Marine Corps Prosecutor issions