Former Acting Solicitor General Neal Katyal thinks criticism of the Obama administration’s post-Sept. 11 legal policies is “misguided” and a “cheap shot.”
In his first interview since leaving the government in June, Katyal defended the administration’s handling of disputes over state secrets, the status of detainees in Afghanistan and immunity for government officials accused of mishandling terror suspects — all of which have been criticized by civil liberties groups.
Katyal has viewed the issues surrounding post-Sept. 11 legal policies from both sides. In 2006, he won fame for representing a Guantánamo detainee in the U.S. Supreme Court case Hamdan v. Rumsfeld, which struck down military commissions.
Three years later, Katyal became deputy, then acting solicitor general, in the new Obama administration, which has grappled with whether to jettison or continue the policies of President George W. Bush.
While in the SG’s office, Katyal recused himself from cases relating to Guantánamo or military commissions because of his prior representation. He declined to comment on them now.
But he did defend his argument that the habeas protections afforded by the Supreme Court to Guantánamo detainees did not extend to Bagram Airfield in Afghanistan — a view endorsed by the U.S. Court of Appeals for the D.C. Circuit. “Guantánamo was essentially U.S. soil,” Katyal said. “Battlefields are different. Bagram is in a war zone constantly under attack.”
Katyal also defended the Obama administration’s invocation of the state secrets privilege, which Obama had criticized during his 2008 campaign.
“It’s not the concept, it’s the application of it,” Katyal said. “If it’s done for the right reason, the privilege seems noncontroversial.”
In Ashcroft v. al-Kidd, decided by the Supreme Court in May, Katyal took heat for arguing that former Attorney General John Ashcroft should not be liable for an inappropriate arrest under the “material witness” statute.
“People said, how could I defend John Ashcroft?” Katyal said. But he argued that “you may have wrongdoing, but you don’t want a system where high officials are personally liable — money out of their pockets.…If that’s the rule, it’s going to be very hard to get people to serve.”
Katyal is going into private practice in the appellate group at Hogan Lovells.