September 07, 2006

American Hero: Neal Katyal

Image Courtesy of Georgetown University

This week on NPR, Nina Totenberg has had a couple of segments discussing the work of a brilliant lawyer, Neal Katyal. Katyal is the lead lawyer in the Hamdam vs Rumsfeld case which was responsible for repimanding the Bush administration for their unlawful detention of prisoners. Totenberg reports on who Neal Katyal is and what the story was behind his win before the Supreme Court. It is an incredible story about a young lawyer who volunteered to take this case because his deep love for the American Constitution. He felt strongly that it was his duty to do what he could to protect our form of government and the Constitution from the Bush administration's attempt to distort it in their pursuit of unitary executive power.

In the jargon of the Supreme Court, we talk about "landmark cases." Some, of course, are more landmark than others. But by any yardstick, the June 2006 ruling in Hamdan v. Rumsfeld was one for the history books.

Hamdan was the case in which the high court invalidated the system set up by President Bush to try accused war criminals at Guantanamo Bay, Cuba. The court's 5-3 decision is widely seen as the most important ruling on executive power in decades, or perhaps ever.

But cases like this do not materialize out of thin air, and the Hamdan case, like Brown v. Board of Education, was carefully nurtured, with the defense lawyers facing a constant stream of difficult issues. A wrong decision at any point could have ended up aborting the case.

Through a number of twists, Katyal had to anticipate and confront the legal maneuvers from the White House and their collaborators in the Senate as they tried to keep this case away from the Supreme Court. As Totenberg says, for each tactic, Katyal and his team found a way to remove the barrier and got the case before the Supreme Court where Katyal won his argument. It was a stunning victory for a lawyer that as Totenberg said is considered the Thurgood Marshall of our times.

What I found fascinating is that the key legal arguments were created by two children of immigrants: John Yoo, who came to this country as an baby from Korea, and Neal Katyal, who was the son of Indian immigrants who hoped their son would be a doctor, not a lawyer. Both clerked for Supreme Court Justices: Yoo with Scalia and Katyal with Breyer. Fortunately for us, Katyal realized early that the unconstitutional actions of the Bush administration needed to be refuted and he had the knowledge and training to do so. As he said in this piece from 2004, the legal twistings of the Bush administration are what makes it clear that they do not respect the Constitution nor the rule of law.

The administration thus gives birth to a legal Frankenstein. It picks its jurisdictional theory—that no one can have civilian review—from 1950, before we had earth-shattering developments in international law (e.g., the Geneva Convention's ratification and its worldwide acceptance) and domestic military law (the 1951 Uniform Code of Military Justice). It picks its procedural theory from the same time period—before the massive revolution in procedural rights in American criminal trials. And it derives its substantive law—the offense of conspiracy—from no real time period at all; it's inspired by cases brought in the 1970s against organized crime. This mix-and-match cannot produce even the closest approximation to fairness.

The chief criticism of the tribunals has always been that the president cannot have the unilateral power to define offenses, pick prosecutors, select judges, authorize charges, select defendants, and then strip the civilian courts of all powers to review tribunal decisions. This principle goes all the way back to the Declaration of Independence, which listed, among the founders' complaints against King George, that he "has affected to render the Military independent of and superior to the Civil Power"; "depriv[ed] us, in many Cases, of the benefits of trial by jury"; "made Judges dependent on his Will alone"; and "transport[ed] us beyond Seas to be tried for pretended Offences." For these reasons, the Supreme Court said during the Civil War that if tribunals are ever appropriate, it is up to Congress to define how and when they are to be used. The current administration has argued that this constitutional history and structure is not relevant because military necessity permitted it to act without explicit congressional authorization.

But charges aren't being brought against planners of the Sept. 11 attacks or other terrorist atrocities. Instead, the president is using these tribunals against minor offenders, where the claim of military necessity is weak. To boot, charges are being brought nearly two and a half years after Sept. 11, dramatically undermining the arguments for avoiding congressional delay. And if the administration prevails at the Supreme Court, the rules for the military commissions—from the definition of substantive offenses to the procedural rules and review guidelines—will be slanted even more in favor of the prosecution than they already are.

Katyal was named in 2005 one of the top 40 lawyers under 40 in the country. Perhaps as we work to regain our country, we might be fortunate to have him one day sit on the Supreme Court.

Posted by Mary at September 7, 2006 07:35 AM | Law/Justice | Technorati links |

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