Katyal: Talking Dog Interview
The Talking Dog
Blog Interview with Neal Katyal
At some point in the next few weeks, the United States Supreme Court is expected to announce whether or not it will accept review of a case called Salim Hamdan v. Donald Rumsfeld, a case in which the District of Columbia Circuit Court of Appeals held that Hamdan, a Yemeni national now detained at Guantanimo Bay Cuba, may not raise provisions of the Geneva Conventions on his own behalf, and may face military tribunals implemented by the President and the Department of Defense. On October 5, 2005, I had the privilege of “interviewing” Professor Neal Katyal of Georgetown University School of Law, the lead civilian attorney for Mr. Hamdan, by an e-mail exchange. The questions and answers follow.
The Talking Dog: I always ask this question first (largely because in my own case, the answer was "in my 16th floor windowed office across the street from the World Trade Center"): where were you on September 11th?
Neal Katyal: First of all, let me thank you for this opportunity to speak with you. I am just returning from India, and am quite jet lagged, so I hope what I say makes some sense.
To answer your first question, I was literally moving from Washington, DC, to New Haven, Connecticut, that day. My first child had been born in DC on August 22, 2001, and I didn't get much sleep during the night of Sept. 10. My wife woke me up around 9am with the report of attack on the World Trade Center. The first words out of my mouth were "UBL." I did national security work for the Justice Department, and was very familiar with his handiwork. I spent the next several months being upset that more had not been done to contain the threat.
The Talking Dog: In 2002, you published a Yale Law Journal article with Harvard's Laurence Tribe criticizing the military tribunal process as it was then proposed, noting such problems as separation of powers and vesting unbridled authority in one branch of government. Having been involved in the process now, on behalf of Salim Hamdan in the case under current consideration for review by the Supreme Court (with an announcement on the review expected shortly) and on behalf of Mr. Rasul and others, how would you say the military commission process as you observed it stacked up against your criticisms (if you like, were you pleasantly surprised, unpleasantly surprised, or have they gone off as expected, with your criticisms largely shown to be valid)?
Neal Katyal: I think the Article has held up well. What we pointed to in the Article (and in our separate testimony to the Senate Judiciary Committee) is that the President's Order establishing military commissions is not law, but an ad hoc set of procedures that change at whim. If we want to have military commission trials (which are completely unlike the terrific system of courts martial adopted by Congress), then legislative involvement is essential.
It's rare for me to get positive feedback on any law review article I write, but Senators Lindsey Graham, John McCain, and John Warner have done exactly that. They have repeatedly pointed out that legislation is needed. These three gentlemen have been true national heroes on this, returning us to the Founders' principles of divided government. In these military commissions, the President is acting as the person who writes the rules, defines the offenses, picks the prosecutors, picks the defense counsel, picks the judges, and picks the review (appellate) panel. In addition, he then has gone so far as to stage these trials at Guantanamo Bay with the hopes of avoiding federal court oversight altogether. This may be many things, but it is certainly not American.
The conflation of the legislative, executive, and judicial powers in the military commission is deeply worrying to me. You can open up the Federalist Papers and find these fears everywhere: Fed. 78 (Hamilton): "There is no liberty if the power of judging be not separated from the legislative and executive powers." Fed. 80 ("No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias"). And, of course, Federalist 84, which is perhaps most poignant on the point:
The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: "To bereave a man of life [says he] or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a a more dangerous engine of arbitrary government."
This tradition is even older than the Constitution itself, for the founders of our Republic identified, among their charges of tyranny against King George III in the Declaration of Independence, that "[h]e 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 de-pendent on his Will alone"; and "transport[ed] us beyond Seas to be tried for pretended Offences."
If you listen to debates on the hill, everyone - from the left and the right - emphasizes and understands this simple principle from our Founders. That was the entire point of the Yale Law Journal article - I feel vindicated, yes. The deep problem is that it is very hard for Senators McCain, Graham, and Warner to do anything - even after the D.C. Circuit decision in Hamdan -- because the President has threatened to veto any legislation on the subject. So the President is able to announce this sweeping set of powers, and then wield the veto pen as a sword to prevent any legislative modifications of his asserted powers. The founders' veto clause is exceptionally powerful - it requires a 2/3ds vote in each house to override a veto. So even if Senator McCain persuaded all of his 99 colleagues in the Senate to adopt a bill reigning in the military commissions, it would still not be a check on the President without a 2/3 vote in the House of Representatives. Ex ante, Congress understands this, and so most of them do not even try to regulate the legal war on terror. That is why, sadly, so much more has fell upon the courts. My great hope is that judicial involvement will ultimately produce legislative solutions to these vexing issues.
The Talking Dog: I read in an interview with Lt. Commander Charlie Swift, Salim Hamdan's military lawyer, that he asked you to assist him in the representation of Mr. Hamdan; you were previously involved with legal actions involving some of the other Guantanamo Bay detainees. If I may ask, how did you get into the "unlawful combatant" representation business?
Neal Katyal: I'm not sure if I am in the "business." The President issued his military commission order on November 13, 2001. Lots of politicians on both sides of the aisle were upset, as were many conservative and liberal commentators. The next week, I was asked by the Senate Judiciary Committee to evaluate the legality of the Order, since I was known as a hawk on national security issues and terrorism at the Justice Department and I teach separation of powers law. But I'm not sure they got what they were looking for.
I remember coming into my constitutional law class a couple of days later saying that I had a surprise for them. My students always tease me because they think I find virtually nothing unconstitutional (in the sense that I believe that a federal judge should almost never declare federal government actions invalid because legislative processes tend to produce fair and balanced results). I came in and said "Hah, I found something that I think courts should strike down." And I explained why.
After all, these military commissions do not involve the authority to detain - which is a far more limited and defensible set of emergency presidential powers. Congress has authorized force against terrorists, and if government officials are empowered to shoot someone, they are entitled to detain them, too. The greater power includes the lesser; both are examples where courts should not easily second-guess a President who says that someone is a prospective threat to the nation and requires containment. But the power to try someone is altogether different. It involves a retrospective look back at guilt or innocence. That is something that requires Congressional legislation, and oversight by courts (which, after all, are well suited to examine questions of guilt).
What upsets me further was that the Government has tried to analogize the military commissions to the proud and wonderful tradition of courts martial in this country. Military officers of all ranks have been tremendously angered by this smear. The military commissions are nothing like today's courts martial; the overhaul of military justice in 1950 by Congress has changed everything. So while past military commissions were required to follow the procedural rules for courts martial, the ones today are not.
Now I realize that in today's law schools, there is a bias against military law as some backwater form of justice. Nothing could be further from the truth. But the civilians who created this military commission process in secret have fed this fire.
The Talking Dog: In a previous interview I had with an attorney for another Guantanimo Bay detainee (Joshua Dratel, representing David Hicks), the attorney said that one of the aspects of the proceedings he found most unfair was that the evidence against his client consisted entirely of statements obtained from other detainees, some of them possible under coercive conditions, with little or no opportunity for cross-examination or confrontation. Judge Robertson's lower court decision granting Mr. Hamdan habeas corpus petition, or at least, holding that he could not be tried by the military tribunals, observed that the commissions fundamentally deprived the accused of the opportunity to confront the witnesses and evidence against him. I'm wondering if you can tell me what, if anything else, you find unfair about the proposed proceedings, and/or elaborate if what I have just mentioned is a problem of fairness?
Neal Katyal: I agree that the right to confrontation is a serious problem. The Justice Department has claimed that this right will be preserved in the military commissions, yet, as Howard Bashman's terrific blog "how appealing" reported a couple of days ago, the Presiding Officer of the military commissions has just said that there is no right to confrontation. Bad timing for the government.
The most basic problem, however, is that the procedures and rules change at whim, including rights of confrontation. It is impossible to plan for a trial when literally everything is up for grabs. That is why legislation is crucial if this experiment is to continue. One example: Last summer the Presiding Officer tried to declare himself the only person to decide the legal questions, instead of (as past military commissions) the entire military commission of all 5 members. We objected to that, because the President's November 13 Order says that the entire commission must be the judge of law. We won that motion before the head of the military commissions (the "appointing authority") who said the Presiding Officer's proposal would be illegal. So we, along with Josh Dratel, then briefed all the legal questions to the entire military commission, and many of them were orally argued before them. The members of the commission asked a number of skeptical questions to the prosecutor.
Well, just two weeks ago, the Defense Department removed those very members (besides the Presiding Officer), and made the Presiding Officer the sole judge of the legal questions. I have no idea how they can do that, given the Appointing Authority's determination that this very act is illegal - and after oral argument no less! But they did. More fundamentally, however, it underscores the problem with the entire scheme - it is a constant moving target. If we assert any rights at all, then they just change the system to game around them. In these circumstances, a trial can only cloud the serious legal flaws.
Here's another example: DOD initially appointed 5 people to serve on the military commission. Two of them had serious conflicts of interest that would predispose them against the defense. So we made a motion to remove them, and even the prosecutors agreed with our fear of bias. When the Appointing Authority agreed to remove the 2 members, he failed to appoint new members to replace them. Because it requires a 2/3 vote to convict, when there were 5 members, the prosecutors had to win 4 of 5 of them. When there are 3 members, the prosecutors need only win 2. So, the upshot of the decision to remove these members was to made the prosecutor's job easier, not harder. The very first thing we did at the November 2004 military commission hearing at Guantanamo was to ask for these biased two members back. If they weren't going to follow the rules and replace the members of the military commission with alternates, then we wanted even the tainted members, since they were at least votes we might have had a possibility of getting.
I realize some of this is technical, but the bottom line is that the military commissions at Guantanamo are nothing like criminal trials (either civilian or military) in our country. The Pentagon points to an Order saying that defendants have various procedural rights, but the very last lines of the Order says that these are not "rights" and that they can be taken away at any time. It is impossible to have a real trial under these circumstances. Every victory for us, such as the removal of tainted members, is turned against us by subsequent rule changes. I don't "blame" the Administration for doing this; it is the natural temptation when you hold all the cards to play them to your advantage and adjust them to new circumstances. And that predictable temptation is precisely why our Founders forbade that concentration of power in the Executive.
The Talking Dog: I understand that you have had occasion to travel to Guanatanimo Bay; I take it you have met with Mr. Hamdan? Can you tell me-- again, without disclosing classified or privileged information of course-- if you (and Lt. Cmdr. Swift) were permitted to speak privately to him, or if your conversations were monitored, and what you can tell me about the conditions of Mr. Hamdan's confinement, including whether he contends he has been mistreated?
Neal Katyal: I have met him, privately, yes. I do not believe the conversations are monitored.
Mr. Hamdan was placed in solitary confinement for 10 months, from December 2003 to October 2004 (just three days before the district court argument in the case). They put him there, they claimed, because they were going to try him. As an amicus brief filed by Deborah Pearlstein of Human Rights first put it in Hamdan's case [available here] the CIA thinks that solitary confinement of just a few days can produce irreparable damage. Here, the confinement for 10 months was exceptionally debilitating.
I live in fear that Hamdan will be in no condition to press his case. That is why I filed the petition asking for Supreme Court review within three weeks of the D.C. Circuit's decision in Hamdan, instead of the 90 days permitted under Supreme Court rules. Sure, more time would have been desirable (and at least would have permitted a tiny bit of sleep for me during those weeks), but I fear for the worst if review doesn't take place soon.
Another thing that really bothers me is the timing of the solitary confinement. When they detained Hamdan, they told Swift that his military trial was imminent. They had been announcing that to the media for months. Well, nothing happened. Two months into Hamdan's detention, we filed a demand for speedy charges and trial. We received a legal opinion from the Appointing Authority saying that Hamdan, as an enemy combatant, has no rights to speedy trial. Once we had that legal opinion, a lawsuit was our only option. And, indeed, only after our lawsuit was filed and the Supreme Court decided the Rasul case did they ever file a charge against Hamdan. And now, it turns out, as one national newspaper is set to report in the next few days, there was an Inspector General investigation of these prosecutorial statements about military commission trials being imminent. The IG investigation evidently found the prosecutors were misrepresenting the ability to commence trials quickly. All the meanwhile, Hamdan was in solitary confinement to await that supposed trial.
The Talking Dog: I understand that Judge Robertson ordered Mr. Hamdan reintegrated with other prisoners at Guantanamo Bay; has the government complied with that order (if you can tell me)?
Neal Katyal: Yes, but I believe they fully complied only after the Boston Globe did a story about their lack of compliance.
The Talking Dog: Judge Robertson's lower court opinion made an extensive analysis of the "self-executing" aspect of the Third Geneva Convention of 1949, which would provide limitations on the right and ability of the United States to try Mr. Hamdan in the manner intended. In reading the D.C. Circuit's appellate decision overturning that, I did not see a discussion or mention of this question of the "self-executing" nature of the treaty. Am I correct that this omission is one of the main bases of your appeal?
Neal Katyal: Not completely. As Judge Robertson recognized, nothing in this case turns on whether the Geneva Conventions are "self-executing." Hamdan is being prosecuted under a statute that the government claims authorizes trial for violations of the laws of war. Under the two-hundred year old Charming Betsy canon of interpretation, statutes must be read consistently with international law. [This is detailed in an exceptional brief by Christopher Wright, Tim Simeone, and Ingrid Wuerth, to the DC Circuit, available here].
Here, there is no doubt that Hamdan's trial does not meet Geneva Convention standards, which are the canonical documents as to what international law in this area is. Even statutes that do not mention international law, under Charming Betsy, have to be read this way; here the very statute the government points to explicitly references international law.
A different way of putting the point is as follows: The government is saying that it can use international law as a sword to prosecute Hamdan, but that Hamdan can't use it as a shield to protect himself. This cherry-picking of international law is forbidden. As the Supreme Court put it in a famous military commission case, Ex Parte Milligan, in 1866, "If he cannot enjoy the immunities attaching to the character of a prisoner of war, how can he be subject to their pains and penalties?"
Finally, of course, there is the serious problem for the government that army regulations already implement the Geneva Convention and have done so for nearly 50 years, so self-execution of the treaty is beside the point.
The Talking Dog: Before I turn further to the appeal itself, obviously, Chief Justice John Roberts was one of the three judges participating in the D.C. Circuit's decision; am I correct that, as far as you know, he will not be participating in the decision on whether to accept certiorari review to the Supreme Court, or other proceedings on the Supreme Court if there are any?
Neal Katyal: As I understand it, then-Judge Roberts told the Senate that he would not participate in any case at the Court in which he was involved as a lower court judge. As Justice Scalia recently pointed out, however, several Justices have reviewed their earlier judgments, including Oliver Wendell Holmes. The issue of recusals loomed large in the Supreme Court's last hearing on military commissions in 1942 in the Nazi Saboteur case, with Justice Murphy recused and several others who might have recused themselves. Yet the Court felt the need, for understandable reasons, to take the case despite the chance of an evenly divided Court. I certainly would have no objection to Chief Justice Roberts sitting in this case to break a tie (a tie is something I think unlikely in any event). I have said all along that this is a matter that requires the judgment of the highest Court of the land (and I went so far as to try to bypass the court of appeals for this reason), because only the Supreme Court can consider the boundaries of that 1942 case.
The Talking Dog: Still on the subject of Chief Justice Roberts, were you aware (and I mean, aware at that time) that he was under consideration by the President for appointment to the Supreme Court at the time Mr. Hamdan's appeal was before him? When you became aware of that later, and, without disclosing any privileges, obviously, was a recusal motion considered... or even available? Again, same limitation about not disclosing privileges-- has "en banc" review to the entire D.C. Circuit been considered?
Neal Katyal: A Guantanamo detainee filed a recusal request with the D.C. Circuit. I filed an opposition to that, saying that intervention by the detainee is improper. I also stated in the brief that Judge Roberts was fully capable of assessing the ethical issues, if any, without briefing by self-interested parties. I have enormous respect for him [disclosure: he was my first boss in Washington, DC, when I worked at his law firm for a summer, and the only time I have ever written a letter in support of a judicial nominee to the Senate was for him, in support of his D.C. Circuit nomination].
The Talking Dog: Again, on the subject of Chief Justice Roberts, and on the subject of the nominee for associate justice, Harriet Miers, do you believe that selecting a justice likely to support the President's policies in his handling of the war on terror, to wit, cases such as Mr. Hamdan's and the other Guantanimo Bay detainees, or stateside detainees such as Padilla or al-Mari, is one of the criteria the President is using or has used in making his nomination choices?
Neal Katyal: You would have to ask the White House.
The Talking Dog: Turning back to the D.C. Circuit's decision overturning the granting of habeas relief, the first thing I note is that the Court contends that Mr. Hamdan signed an affidavit admitting that he was Osama bin Laden's personal driver. My understanding from other sources is that he contended he was one of many such drivers, someone in the OBL motor pool, if you will. Without going into what his role was, are you aware of whether or not the D.C. Circuit's finding that Hamdan signed such an affidavit stating he was OBL's personal driver, is accurate, i.e., did he sign such an affidavit, or are they stretching the facts here or misconstruing a statement Mr. Hamdan made?
Neal Katyal: The statement is in the record. I do think it has been stretched quite a bit by many. Hamdan was one of many civilian drivers, about as low-ranking as you can get, and drove people from farm to farm. He is the guy who is outside of the tent kicking stones waiting for people to wake up or finish talking. As I argued in Slate, the folks charged like Hamdan are not the kingpins the Administration used when they tried to sell military commissions on the Senate and the media in November, 2001. If we are going to have an end-run around civilian and military justice, we should bend the rules for a high-level target, not a civilian driver.
The Talking Dog: My understanding is that after the Hamdi case last year, Mr. Hamdan was quickly hailed before a military tribunal that called itself a Combatant Status Review Tribunal. Am I correct that you contend that this did not comply with Geneva Convention requirements, and if I am correct on that, could you explain why it does not so comply (and am I right that this concerns the matter of "impartial arbiter")?
Neal Katyal: Yes, even the Government admitted in this case that the CSRT had 'zero effect.' Judge Green has detailed many of the problems with the CSRT in her exhaustive opinion. But the most important issue is this - a CSRT merely determines whether someone is an enemy combatant. Since most POWs ARE enemy combatants, an affirmative finding by a CSRT does nothing to show that someone can be stripped of POW status. If anything, such a finding would suggest the contrary.
The Talking Dog: I have been taken aback a few times by the proposition-- found by the 4th Circuit in Jose Padilla's case and by the D.C. Circuit in the Hamdan case-- that the Use of Force Resolution passed by Congress in 2001 authorizing the President to use force necessary to thwart and/or capture those responsible for the September 11th attacks has now been likened to a declaration of war for purposes of establishing military jurisdiction to detain and try prisoners, for purposes of relying on the precedent of Quirin, but then is simultaneously not a declaration of war for the purpose of anyone captured (including citizens) relying on the the third 1949 Geneva Convention signed by both the U.S.A. and Afghanistan (because our war against Al Qaeda was somehow distinct from our war against the Afghan Taliban), which would require such prisoners to have impartial status hearings, and pending which, to be prisoners of war and subject to treaty protections as such... is my assessment of a sort of Alice in Wonderland quality to these rulings accurate?
Neal Katyal: As I said above, I think that the AUMF does authorize force, and, as part of force, does permit detention. But trial is an altogether different animal. This is the first military commission to take place in a loosely defined and perpetual conflict; the Supreme Court has only upheld them in declared wars or the civil war (the latter of which, under the laws of war, suffices to trigger the panoply of international huminatiarian law provisions). The removal of these constraints in this War on Terror is very troubling to me, particularly in an age when we are discussing modifications to posse comitatus for bird flu and the like. The Vice President has recently warned that this War on Terror will go on for decades. Some limits on the ability of the President to bypass courts and courts-martial is essential. Again, I'm known as a very strong academic defender of presidential prerogatives, but I think that those of us who believe in vibrant presidential power have the most to fear from these military commissions, because they caricature the unitary executive theory.
The Talking Dog: Am I correct that the holding by the D.C. Circuit that the President himself is a competent authority to determine whether or not persons he designates as "unlawful combatants" is itself prohibited by the 1949 Geneva Convention (because the President, who did the capturing, is not an impartial arbiter) assuming of course that the convention is actually the law?
Neal Katyal: Yes. In fact the 1949 Convention was written precisely to make it impossible for political actors to suspend the convention as they saw fit. As Jess Bravin has written for the Wall Street Journal, in World War II the Japanese Emperor suspended 1929 Geneva Convention Protections for our captured pilots, and we eventually prosecuted the Japanese prosecutors for war crimes for their actions. We did not want politicians, who are always tempted for understandable reasons to strip defendant's protections, to be making these decisions. And the 1949 Convention, and in particular Article 85, was written to reverse the Supreme Court's decision in Yamashita.
That is why it should come as no surprise that my greatest supporters in this lawsuit have always been the men and women of the American military. Senator Lindsey Graham recently released a series of memos. In them, our nation's highest uniformed legal officers, the Judge Advocate Generals, explain the consequences of adopting these reckless interpretations of human rights treaties, which the Justice Department had claimed inapplicable to detainees. The first, and most important, thing they did was point out how our own troops lives would be put at risk by DOJ. As Marine General Kevin Sandkuhler put it, the Justice Department entity that drafted the policy "does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion."
The point here is simple: if America is seen as giving political actors like the President the ability to essentially suspend the Geneva Conventions through creative re-interpretation, there is nothing to stop other nations from doing the same to our troops when they are captured. That is why uniformed lawyers have been the chief obstacle to the reckless disregard of our international obligations since the attacks of September 11, and why judicial management of detainees at Guantanamo shouldn't be chalked up to "coddling terrorists." As Air Force General Jack Rives stated in the documents "consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which suffered during the Vietnam conflict and at other times due to perceived law of armed conflict violations. [T]he DoD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces. [C]onsideration should be given to whether implementation of such techniques is likely to result in adverse impacts for DoD personnel who become POWs, including possible perceptions by other nations that the United States is lowering standards related to the treatment of prisoners, generally."
The Talking Dog: I was troubled by the D.C. Circuit's contention that, notwithstanding the lower court's holding that the Geneva Convention, at least as applicable to Hamdan, is self-executing and therefore, as having been duly ratified, the "supreme law of the land", or at least, equivalent to a federal statute which, as self-executing, would provide for a private enforcement remedy (and please tell me if I'm wrong about that)... was found by the D.C. Circuit to be, instead, enforceable only by the "interest and honor of the governments that are parties to it." Am I correct that this holding is, in effect, that the President has the right to unilaterally abrogate virtually any already ratified treaty that he and he alone believes "the interest and honor of the government" warrants abrogating, and no one has any standing to challenge this? Or am I reading too much into that?
Neal Katyal: I think you are essentially correct, as I stated above.
The Talking Dog I was also troubled by the D.C. Circuit's implicit finding that it was the President, rather than Congress, that could determine the scope of the conflict as he saw fit (in other words, the Congressional Use of Force declaration that permitted the President to use military force against Afghanistan could be declared an action against virtually any party the President found convenient, such as a separation between war against the Afghan Taliban and Al Qaeda, even though, as noted by Judge Robertson in the district court, the public understood it to be one unitary conflict.) Am I correct that this is one of the "separation of powers" concerns you raised in your Yale law review article, and have raised in your arguments on behalf of Mr. Hamdan?
Neal Katyal: Exactly.
The Talking Dog: I understand that some amicus briefs-- and certainly Judge Robertson's opinion below-- addressed the concern that the United States' decision to treat certain prisoners captured in military actions in a manner contrary to our treaty obligations posed a danger to American military personnel captured by others. What is the Government's rationale for incurring this risk (if they have stated one), and have you gotten a sense of how this issue is playing among members of the military themselves? In other words, are military personnel concerned that (my words) arbitrary handling of prisoners at Guantanimo threatens their safety and fair treatment in the event of capture?
Neal Katyal: The brief filed by retired generals and admirals in the Supreme Court is very important. It explains how there is a present, real-world, risk to our troops should the Court let the decision below stand. I understand that there is always a "wait and see" impulse in high-level judicial decisionmaking. Here, "wait and see" has profound and dangerous consequences. Here is the first line of the Generals and Admirals' brief: "The Court should grant review because the decision of the court of appeals [in Hamdan] immediately and directly endangers American soldiers and undermines the laws of war." Now these are not squishy liberals; they are as high as you can get in the military legal pinnacle in this country.
Academics like Alexander Bickel, who advocated using prudential doctrines to keep the courts silent, also recognized the times when courts need to get involved. In particular, when our eternal values were at stake, the Supreme Court was the "institution of our government" best positioned to "be the pronouncer and guardian of such values." Chief among Bickel's values was "that government should serve not only what we conceive from time to time to be our immediate material needs but also certain enduring values. This in part is what is meant by government under law." That is why I believe the Supreme Court should hear this case now. As the Supreme Court itself put it in the 1866 military commission case, "No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people..."
The Talking Dog: Is there anything else you believe that people need to know about either Mr. Hamdan's case, about the other tribunals or detainees at Guantanimo, or the conduct of the war on terror in general? Are there any questions on these points that I should have asked you, and if so, what, and how would you answer them?
Neal Katyal: No, your questions were fantastic, and I very much appreciate the chance to discuss them with you.
The Talking Dog: I would ask all our readers to join me in thanking Professor Katyal for being so generous with his time and with his thoughts.
Get original here.