Georgetown University law professor Neal Katyal '91 discussed his role as lead counsel in the U.S. Supreme Court case Hamdan v. Rumsfeld Wednesday in a lecture in Filene Auditorium sponsored by the Rockefeller Center. In the case, which Katyal's client won by a 5-3 margin, Katyal represented Osama Bin Laden's Yemeni driver, Salim Ahmed Hamdan, and, in the face of much legal maneuvering on the government's side, challenged the legality of military trials at Guantanamo Bay.
Katyal also announced to the full crowd attending the lecture that, in partner with Navy lawyer Lieutenant Commander Charles Swift, a new appeal would be filed in the Supreme Court on behalf of Hamdan in order to strike down the military commission act. Under this act, Hamdan might still be charged without having any constitutional rights, he added.
In its narrow form, the case stands for two propositions, Katyal said. First, the president cannot try prisoners in a manner that violates the Uniform Code of Military Justice nor Common Article 3 of the Geneva Conventions. He said the case, however, has much broader implications.
"This case really stands for a much simpler idea," Katyal said. "Congress makes the laws and not the president."
In a time of emergency, if the president has a reliable reason and no time to go to Congress, then it would be acceptable for him to bypass Congress, Katyal said. He argued that five years after 9/11, there is no need for President Bush to be exercising such authority.
"The president should be acting less like King George III and more like a president constrained by limitations of power," Katyal said.
Katyal also described his visit to Guantanamo Bay and his meeting with Hamdan for the first time. When Katyal first met Hamdan he was surprised to be greeted with a grin and not animosity. Hamdan then asked Katyal, "Why are you doing this?"
"The thing is, I remember when I first read the president's order," Katyal said in response to Hamdan's question. "The thing that bothered me about it was that the order only applied to foreigners and not American citizens."
The idea especially resonated with Katyal because his parents came to America in search of equality.
"When we punish people we have to treat aliens the same way we treat citizens," Katyal said. "We fought a war so that all people could have constitutional rights."
Katyal first became interested in the case after reading the ticker on CNN, which read, "President issues order for military trials of terrorists."
The shock of this statement led Katyal to the White House website where he found an outline of the president's plans for the military trials. The plan said that the president would handpick the judges, write the rules for the trial and not allow the federal courts to review the trials processes.
"I thought I had typed the wrong White House site," Katyal said, in reference to a spoof White House website.
Although Katyal said he was criticized by some for "defending terrorists," many members of the armed forces supported his lawsuit. These members of the armed forces knew that breaking the Geneva Conventions would result in retribution against those on the front line, Katyal said.
"What kind of American do we want?" Katyal asked the audience. "One that stands by its principles or one that quits when the going gets tough?"
In a question-and-answer session, history professor Ronald Edsforth praised Katyal.
"You make me proud to be an American," he said, before challenging Katyal on a minor point.
Before he spoke, Katyal was introduced by Andrew Samwick, director of the Rockefeller Center, who commented on Katyal's importance.
"The law needs brave men and women to defend it," Samwick said. "Neal Katyal is a model of these men."
