Neal Katyal: Lead Counsel for Hamdan

This evening, ACS along with SALSA, welcomed Neal Katyal to discuss the Supreme Courts’ 2006 decision in Hamdan v. Rumsfeld. Prof. Katyal was not only the lead counsel in Hamdan, he was co-counsel in Bush v. Gore, he clerked for Justice Breyer and Judge Calabresi, he served as National Security Adviser in the U.S. Justice Department, and he is currently the John Carroll Professor of Law at the Georgetown University Law Center.

Prof. Katyal first spoke about how he became involved in the case. He noted that as part of his job at the Justice Department and in his academic work, he has argued for a strong “Unitary Executive.” He distinguished this from the view of President Bush’s Administration which believes that when Congress has passed a law, through secret memos, the President can ignore that law when he feels that it unconstitutionally inhibits his power as Commander and Chief. For him, Hamdan is all about rejecting this view. “Congress calls the shots, not the President.” He cannot undo laws and treaties when he disagrees with them. There is some limited authority of the president in time of emergency, but this rarely happens in real life (only to Jack Bauer). There is some “residual emergency power” reserved by the President, but the question is how much and when—and the President’s answer has been as much as he wants and whenever.

In November of 2001, the President issued a military trial order and Katyal’s first impression was that it had to be a joke. The President was saying that he was going to set up a new trial system. He would define the offenses, the procedural rules, the rights (none), and the Federal Courts could not review it. Even as a person who favored a strong presidency, Katyal felt this went too far. The Administration argued that these trials where necessary and needed right away and there was no time to go to Congress. What if Osama bin Laden was caught before Congress acted? (He noted that Congress had passed by this time the Authorization for Use of Military Force and the Patriot Act).

It was for these reasons that Katyal began searching for a test case to challenge the President’s order. Charlie Swift (LCDR U.S. Navy) recommended Salim Ahmed Hamdan, who was the captured driver of bin Laden. Hamdan agreed to be represented by Katyal and Swift, and his case was filed. They argued that the trials violated the separation of powers, the Uniform Code of Military Justice ("UCMJ") which says how to conduct trials, and the Geneva Convention. The District Court agreed that this trial violated the separation of powers because it did not follow the UCMJ—specifically because Hamdan was kicked out of his own criminal trial. This apparently has not been allowed since the Star Chamber in England. At the D.C. Circuit they lost on appeal unanimously. Judge Williams, in his concurrence, did give some hope in rejecting the District Court’s decision that Common Article III of the Geneva Convention did not apply. Common Article III says that in all conflicts, the rights indispensable to all civilized people must be granted, but the Administration argued the since al-Qaeda did not sign the convention they do not get this protection. Katyal response was, “Whales didn’t sign the Whaling Convention.”

The Supreme Court granted cert, but Congress passed a bill to strip the case off of the Court’s docket. There was, however, an argument that the bill could be read to “grandfather” in Hamdan’s appeal. On 29 June 29th, 2006 the Court sided with Hamdan on all arguments. Katyal first impression upon leaving the court house was that the Court in a time of armed conflict told the President “No.” This guy with no financial means, who was accused of conspiring with one of this nation's worst enemies in its history, sued the President of the United States in the highest court in this land, and won. This is unique in this world. In many places, Hamdan would have been shot for doing this. Katyal quoted then Judge Roberts: “If the little guy’s argument is right, he wins.”

He then spoke about the Military Commissions Act (“MCA”) and his amazement that it was proposed by the President and passed by Congress in only three weeks. He believes it passed so fast because “it literally only effects people who cannot vote.” It only applies to green card holders and other non-citizens. American citizens, he said, “get the Cadillac of justice,” but if you are not a citizen “you get the beat up Chevy version of justice.” The first time Katyal met Hamdan, Hamdan asked Katyal why he was representing him when his last client was the Vice-President? Katyal thought of his parents, who came to the U.S. from India because of its commitment to equality and fairness. The MCA was violating this vision of America. Equal Protection of the laws under the 14th Amendment says “all persons” not “citizens.” This was done to overrule Dread Scott which limited constitutional rights to citizens only. Under the MCA, a separate trial system for foreigners has been set up, and it says that they only get a limited set of rights, while we get everything. That is why Katyal believes it is “doomed to fail.”

After the decision was handed down, the President and others in the Administration said that this would be a chance to paint Democrats as soft on the war on terror. Katyal expressed his shock that this was the President’s response. The first thing the President ever does is take an oath of office in which he swears to uphold the Constitution. The Supreme Court of the United States had just told the President that he violated the Constitution. The President, however, looked for the political gain that could be made from the decision. Since the war on terror has begun, no one has been brought to trial, and for Katyal “that is not a way to run a justice system.”

Katyal last spoke of a quote that was sent to him after the decision came out. It was the words written by Justice Rutledge in his dissent in the 1946 Supreme Court decision Yamashita v. Styer:

More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the second inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late.

This long-held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered.

The person who sent it was not quoting the case. Rather, it was from a chapter on Rutledge written by one of the Justice’s former law clerks. That clerk, now Justice John Paul Stevens, made good on his boss’s promise fifty years later.

A good discussion followed Katyal’s remarks as well as a “delightful” reception. We would like to thank Professor Katyal for speaking with us this evening. We would also like to express thanks to Dechert LLP, Paul Weiss, Perkins Coie, Cleary Gottlieb Steen & Hamilton LLP, and Cravath, Swaine & Moore LLP for their generous support which made the evening possible.