Category Archive 'Neal K. Katyal'

14 Mar 2010

Like Saul Alinsky, Not John Adams

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Neal Katyal celebrates the decision in Hamdan v. Rumsfeld

Andrew C. McCarthy rebuts misleading editorial claims that certain attorneys now employed by the Department of Justice were “only doing their job” and following the conventional ethical obligations of the Bar in pursuing various kinds of innovative litigation on behalf of War on Terror detainees.

The fictional premise of these wayward complaints is that the Justice Department’s al Qaeda lawyers stand in the same shoes as criminal-defense lawyers. The latter must represent even unsavory characters because the Constitution guarantees counsel to those charged with crimes.

To the contrary, the Justice Department’s al Qaeda lawyers were volunteers, just as Mr. Holder volunteered in the Heller case. Unlike the British soldiers represented by John Adams, the Gitmo detainees are not entitled to counsel. They are not criminal defendants. They are plaintiffs in offensive lawsuits, filed under the rubric of habeas corpus, challenging their detention as war prisoners. The nation is at war, and the detainees are unprivileged alien enemy combatants. By contrast, the United States was not at war with England at the time of the Boston Massacre, and the British soldiers were lawful police, not nonuniformed terrorists.

There is no right to counsel in habeas corpus cases. Thousands of American inmates must represent themselves in such suits—there is no parade of white-shoe law firms at their beck and call. Until 2004, moreover, enemy prisoners were not permitted to challenge their detention at all. The Supreme Court rejected such claims in the 1950 Eisentrager case, precisely because they damage the national war effort. Yes, left-leaning lawyers have convinced the Supreme Court’s liberal bloc to ignore precedent and permit Gitmo habeas petitions. That neither makes these suits less damaging, nor endows the enemy with a right to counsel.

Advocating for the enemy is a modern anomaly, not a proud tradition. Defense lawyers representing accused criminals perform a constitutionally required function. Not so the Department of Justice’s Gitmo volunteers. They represented al Qaeda operatives because they wanted to, not because they had to. The suggestion that they served a vital constitutional function is self-adulating myth. Their motive was to move the law in a particular direction.

Ironically, a number of Republican and conservative lawyers have written editorials and signed letters expressing the same specious analysis that equates the proactive defense of the enemy by the members of the treasonous community of fashion with the conventional acceptance of an assigned duty to provide representation to an unpopular or controversial client. You do not find Mr. Katyal, Mr. Holder, or certain representatives of Shearman & Sterling volunteering to defend the marines charged with murder or the Navy seals who gave the leader of a mob that murdered and mutilated Americans a fat lip.

Former Attorney General Michael Mukasey and former Solicitor General Theodore Olson, I suppose, deserve some special appreciation for their highmindedness and inclination to bend over backward in order to refrain from pointing fingers at members of their own profession in the opposing camp, but their insistence on placing the best interpretation on the motives of opponents seems more than a little naive in a world in which the democrat party left endeavors to criminalize policy differences as frequently as possible.

There is the difference between Republicans and democrats, between the American right and the American left in a nutshell. Mukasey and Olson are found hastening to defend Neal Katyal’s efforts to utilize American law for the benefit of those making war against it and the Geneva Convention to protect illegal combatants who routinely flout it, while the left is enthusiastically trying to claim that Bush Administration attorneys deserve prosecution for violations of international law as well as sanctions for professional misconduct.

What we have here is the successful application by the left of Saul Alinsky’s radical technique of “making your opponent obey his own rules” on two levels. Leftwing attorneys have successfully compelled the United States government to accord constitutional protections and the privileges of domestic legal process to armed enemies captured overseas and effectively contrived to have the Supreme Court enforce Article 75 of Protocol I (1977) of the Geneva Convention which the United States never signed. Meanwhile, the left accuses and makes strong efforts to punish Republican attorneys for legal and ethical violations on the basis of ultra-partisan and highly strained interpretations. Yet, prominent Republican legal figures shrink from criticizing, even from accurately identifying, enthusiastic advocacy on behalf of the enemy in time of war as what it really is.

22 Sep 2006

Thanking America, Then and Now

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How Neal Katyal expresses his gratitude to the US:
Defending Osama bin Ladin’s driver, Salim Ahmed Hamdan

This month’s Yale Alumni Magazine interviews celebrity alumnus Georgetown Law Professor Neal K. Katyal, ’95JD Yale Law, preening over his victory in Hamdan v. Rumsfeld, which challenged the authority of the President to consign illegal combatants to trial by military courts, and which elicited the absurd majority opinion, written by Justice Stevens, which erroneously applies the language of Article 3 of the Geneva Convention, viz.,

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions (to):

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause…

to illegal combatants and terrorists captured outside the territory of the United States.

Katyal shares with the Yale Alumni Magazine the heart-warming story of his moving reply to Hamdan, when the imprisoned jihadi asked: “Why do you want to help me?”

So I paused for a long time, and then I said that I was doing this because my parents came to America to give their children better opportunities, and I couldn’t imagine another country on earth in which I would be able to do what I have been able to do. My parents came here from India, literally with eight dollars in their pockets, each of them. And what bothered me the most about the president’s order is that it said only foreigners would get this military justice system. If you were an American citizen, then you got a civilian trial. But if you were a green-card holder or a foreigner, then you got something really inferior. That was the first time that I felt our country was so fundamentally on the wrong path — and I had to do something.

I can relate to Mr. Katyal’s strong feelings of gratitude and appreciation toward the United States, as I come from immigrant background myself. My grandparents arrived here from Lithuania in the 1890s.

Professor Katyal and my father have a lot in common. Both were of the first generation brought up and educated in the United States. Both were grateful for the opportunities offered by the United States, though my father was not so quite so fortunate as Professor Katyal, who attended Dartmouth and Yale Law School.

Because his own father was dying of miner’s asthma, my father had to quit school after 8th grade and go to work in the coal mines to help support the family. But he was still grateful to grow up in the United States, rather than in Russian-occupied Lithuania, grateful for both America’s political freedom and for her economic opportunities, even though he had much less access to the latter than some others.

Despite the things they have in common, still, I cannot help reflecting that my father’s gratitude toward this country expressed itself in forms distinctly different than Professor Katyal’s, forms more recognizable as gratitude. I feel sure that my father left America better off by his relatively obscure contributions, a lifetime of hard labor and wartime military service, when he died in 1997. If Professor Katyal passed away tomorrow, I’m afraid I would find it very difficult to say the same of his more celebrated ones.

I do agree with Professor Katyal on one thing, though. I too cannot “imagine another country on earth in which (he) would be able to do what (he) ha(s) been able to do.”

How my father expressed his gratitude to the US:
Serving in the Marine Corps in the South Pacific

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