Did SCOTUSBlog Founders Confuse the Supreme Court in Hamdan?

Ramesh Ponnuru of National Review is charging that Justice Stevens’ majority opinion in Hamdan has a factual mistake due to a misstatement in a brief co-authored by SCOTUSBlog founders Tom Goldstein and Amy Howe.*

Justice Stevens’ opinion dismisses speeches by Senators Kyl and Graham interpreting the Detainee Treatment Act to apply retroactively to Hamdan’s case. In footnote 10 of the Hamdan decision, Justice Stevens says the Kyl-Graham statements, “appear to have been inserted into the Congressional Record after the Senate debate. . . . All statements made during the debate itself support Senator Levin’s understanding.”

According to Ponnuru, however:

[]Stevens has it wrong. None of the statements he cites — on either side of the issue — was made during floor debate in the Senate. All of them were submitted for the record after the debate (but before the vote on the act). Compare the cited passages of the Congressional Record to the CSPAN videotape of the floor debate, and it is clear that Levin’s statement and the other statements supporting his position were inserted after the fact, just as Kyl and Graham’s statements were.

I don’t have the CSPAN videotape, but if Ponnuru is right, Howe and Goldstein made a mistake in their briefing (see here on p. 10). It is not a big mistake because there is no way the case turns on this point. Nor is it unforgivable (lawyers don’t usually have to check their cites against CSPAN). But for lawyers of their quality and reputation, it is a regrettable and surprising mistake.

On the other hand, Ponnuru could be wrong. Reviewing the actual Congressional Record transcript (see 151 Cong. Rec. S14256-01, 2005 WL 3500918) doesn’t confirm who is right here. Will Howe and Goldstein respond?

*Having reviewed the brief more carefully, I think it is mistake to single out Howe and Goldstein. The brief is submitted by Neal Katyal, who is counsel of record, and has two other co-counsels. But if Ponnuru is right, then the mistake is even more surprising.