Jon Kyl: “No one really argued that the McCain amendments do create a private cause of action, except that some groups have…”

“No one really argued that the McCain amendments do create a private cause of action, except that some groups have suggested that the Graham/Kyl amendment is somehow inconsistent with the McCain amendments, the implication being that the Graham amendment wiped out the forum for bringing some cause of action that otherwise was created. Obviously, if the McCain amendment did create a private right of action, our amendment would bar the courts from entertaining that action. But the fact alone that the same Congress that adopted the McCain amendment also adopted the Graham/Kyl amendment tends to confirm, I would think, that the McCain amendments never were intended to create a private right of action in the first place. As a matter of fact, the Supreme Court recently has tightened the standards for spontaneously recognizing such actions in cases where Congress is silent on the matter--I believe it was in the recent case of Alexander against Sandoval. The McCain amendments do not state that they create a private cause of action. They regulate the conduct our troops rather than creating rights. And we have alternative means of their enforcement--as my colleague mentioned, through the system of military discipline--and thus we do not need a private cause of action to be implemented. I would be pretty surprised if, under those circumstances, anyone were to argue that the McCain amendment created a private right of action.…”