One day he's on a brief with conservative scholar Richard Epstein, the next he's challenging the Guantanamo tribunals. Neal Katyal defies easy categorization. Just seven years after a Supreme Court clerkship, the young Georgetown University law professor has already figured in many important cases. Says a former deputy attorney general who supervised Katyal at the Department of Justice: "He is already a force, and he will be recognized as a national figure in the law."
By Elizabeth Amon|September 15, 2004 at 12:00 AM
Thank you for sharing!
Your article was successfully shared with the contacts you provided.
In its trio of June decisions on “enemy combatants,” the U.S. Supreme Court permitted prisoners on the U.S. military base at Guantanamo Bay, Cuba, to get a foot in the door of U.S. courts. More than a dozen suits have been filed since, challenging the government’s detention and treatment of the 600 people who have been held in limbo for more than two years. One suit, though, is a step ahead of the others. It’s the first to challenge the presidentially ordained military justice system that will try those accused of war crimes. Leading that challenge is Neal Katyal, a young professor at Georgetown University Law Center who, seven years after a Supreme Court clerkship, has already had a finger in many important national cases. “He is one of the brightest young lawyers that I know,” says Covington & Burling partner Eric Holder, a former deputy attorney general who supervised Katyal at the U.S. Department of Justice. “He is already a force, and he will be recognized as a national figure in the law.” Filed in April and transferred last month from Seattle to a D.C. federal court, Swift v. Rumsfeld asserts that the commissions violate the Uniform Code of Military Justice (UCMJ), the Geneva Convention, and the U.S. Constitution. Katyal, who has no trial experience, is working with Lieutenant Commander Charles Swift, a military defense lawyer representing one of the four Guantanamo detainees who has been charged. The government assigned Swift, a well-respected attorney who has defended more than 150 people in court-martial proceedings, to Salim Ahmed Hamdan, a 34-year-old Yemeni. Arrested in Afghanistan in November 2001, Hamdan was charged with one count of conspiracy in July. The government accuses him of being a driver and bodyguard for Osama Bin Laden, implicating him in murder and terrorism wrought by al-Qaida. Hamdan’s lawyers acknowledge he worked as a driver for Bin Laden, but they say he was never a member of al-Qaida and never participated in plans to attack Americans. Katyal, 34, is earnest and genial. Raised in a suburb of Chicago, Katyal is the son of Indian immigrants who hoped he would become a doctor. He graduated from Yale Law School in 1995, and after clerking for Supreme Court justice Stephen Breyer, he served as national security adviser to Holder in 1998 and 1999. Since then, he’s had a hand in many of the country’s most prominent cases. He was part of Harvard Law School professor Laurence Tribe’s team that worked for Vice President Al Gore in the Florida recount battles of 2000. Tribe describes him as “very creative, very resourceful, very persistent, very quick.” Katyal also filed an amicus brief in the landmark Michigan affirmative action case, Grutter v. Bollinger, representing law school deans who favored using race as a factor in admissions. More recently, Katyal filed an amicus brief in the Supreme Court’s Al Odah v. United States, on behalf of the military defense lawyers assigned to the Guantanamo detainees. And he filed an amicus in the pledge of allegiance case before the Supreme Court, Elk Grove Unified School District v. Newdow. Although generally viewed as a liberal, Katyal has frequently co-authored papers and briefs with conservative scholars. His pledge of allegiance amicus was co-written with Richard Epstein, a conservative University of Chicago Law School professor. They filed on behalf of the federal government, asserting the primacy of state law, an argument that the Court largely adopted in its opinion. He’s also shared a byline with Viet Dinh, a fellow Georgetown law professor who, as assistant attorney general under John Ashcroft, engineered the USA Patriot Act. In a New York Times op-ed, they argued against an independent counsel to investigate the government’s involvement in the disclosure of Central Intelligence Agency officer Valerie Plume’s identity. Katyal’s positions are somewhat eclectic. While challenging the legality of the military commissions, he hasn’t taken a position on the detentions at Guantanamo. In fact, at the Pentagon’s request, he’s given the government advice on their procedures to review the detention of the prisoners. (He declined to talk about that advice.) He asserts that there is a clear difference between the two actions. “The president should have the power to temporarily detain those who are threats,” he says, “but not the power to brand them criminals and sentence them to life imprisonment or even death in a trumped-up proceeding that lacks the sanction of Congress.” Katyal got involved with the issue last May, after he volunteered to help the military defense lawyers. “His work ethic, zeal, intelligence, and ability have been phenomenal,” says Swift, his primary client. Katyal has devoted more than 1,300 pro bono hours to the issue. For additional pro bono help, he has also brought into the case attorneys from Perkins Coie, including partner Harry Schneider Jr., and 13 students from Georgetown and Yale. President George Bush created the military commissions two months after the September 11 attacks. The order authorizes their use for noncitizens charged with terrorism and other war crimes. Though it states that the commissions will provide a “full and fair trial,” the order left the details to the U.S. Department of Defense. At press time Hamdan and the three other detainees who have been charged were scheduled to have pretrial motions heard on August 23. (The military commissions differ from the hearings reviewing the cases that will either free the prisoners or send them to the commissions for trial on war crimes charges.) In Katyal’s view, the president doesn’t have the power to create the military commissions without congressional authorization, and, because they’re targeted exclusively at foreign prisoners, the commissions violate equal protection guarantees. Katyal also argues that both the Geneva Convention and the U.S. military justice code required that charges should have been filed much sooner against Hamdan. And he challenges the commission’s jurisdiction over Hamdan because the crime he’s accused of, conspiracy, is not a violation of the law of war. In court, the government has defended the president’s inherent authority to create the commissions. Also, the feds argued that Hamdan, as a nonresident alien, has no constitutional rights and that neither the military code nor the Geneva Conventions’ protections apply to him. Last month, federal judge Robert Lasnik transferred the suit from Seattle to D.C., which means Katyal will lose the liberal forum of the 9th U.S. Circuit Court of Appeals. Many lawyers working on these issues expect this case or one like it to go to the Supreme Court. If so, the justices will have to parse their decisions last term. The Court ruled that the prisoners were entitled to fair treatment, a standard that the commissions may not satisfy because they lack independent judges and there is no appeal to the federal courts. However, as Cass Sunstein of the University of Chicago law school points out, the most apropros case, Ex Parte Quirin, a 1942 Supreme Court case involving captured German saboteurs, upheld the jurisdiction of a military commission. Says Sunstein: “If the Court adheres closely to the Quirin case, the military tribunals aren’t going to be unconstitutional.” For Katyal, or any lawyer, that’s a formidable challenge. THE RETAINED FOR THE DETAINED Since the June ruling that Guantanamo detainees had a right to counsel, individual lawyers, professors, firms, and nonprofit groups have signed up to represent them. Firms on the list include:
This content has been archived. It is available exclusively through our partner LexisNexis®.
To view this content, please continue to Lexis Advance®.
LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.
ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.
Discover how to avoid the consequences of ineffective Information Governance including difficulty complying with data privacy regulations, like the European Union’s General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA), and handling e-discovery and other legal matters.
An expert witness can make or break a case. What if you could determine in minutes how many times a potential expert has testified, how many times his or her testimony has been excluded, the verdicts associated with the testimony, and more? This info brief explains how.
With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
Dynamically explore and compare data on law firms, companies, individual lawyers, and industry trends.
Exclusive Depth and Reach.
Legal Compass includes access to our exclusive industry reports, combining the unmatched expertise of our analyst team with ALM’s deep bench of proprietary information to provide insights that can’t be found anywhere else.
Big Pictures and Fine Details
Legal Compass delivers you the full scope of information, from the rankings of the Am Law 200 and NLJ 500 to intricate details and comparisons of firms’ financials, staffing, clients, news and events.
As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters.
Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss.
Tailored just for you. In your inbox. Every day.