Hamdan Panel: Neal Katyal, notes by Rebecca Tushnet

Georgetown University Law Center panel on Hamdan v. Rumsfeld, June 30, 2006, sponsored by the GULC Supreme Court Institute: 

These are my notes from the panel. I am not deeply familiar with the case and I could not get down every detail, so please treat these as notes, not a transcript.

Mark Tushnet summarized the case and identified some remaining issues, as discussed in his earlier post. 

Neal Katyal: He testified over 4 years ago before the Senate Judiciary Committee on military tribunals. He remembers going into his Con Law class, which thought he advocated excessive judicial deference and never thought any law was unconstitutional. He told them he’d found something unconstitutional.  Fifty-six months later, not a single person was tried in these commissions even though the administration said there was no time to wait for legislation. They didn’t even indict anyone for 2½ years. The commisions were never really about trying terrorists; they were means to further an agenda of presidential powers in a time of crisis. This agenda is understandable in a lot of ways; any president in office after September 11 would have tried to push his powers to the zenith in many, though not all, areas.

The administration decided to say the courts have no business asking questions because it’s up to the president to authorize whatever he thinks is in the national interest; the executive writes and defines all the offenses, acts as judge and jury, and perhaps even executioner, since the death penalty is available. This is deeply in tension with the founders’ designs, especially when Congress can legislate and has done so.

That’s what was rebuked yesterday, these extravagant claims. Maybe on Sept. 13th, the president did have such powers, but 56 months later, the claims are hollow. We should return to foundational ideals that no one person, no matter how wise he is, can control our government. We’ve already heard calls for legislation to fix the decision from Senator Frist and others. If there were a national security emergency, one would have expected it to occur before the Hamdan decision, since the tribunals haven’t tried anyone. This was not a robust system; it’s indicted 10 people, tried no one, and of the 10, they’re basically low-level. Again, the commissions were not about convicting terrorists, but looking tough on the war on terror. Looking tough and being tough are different things. Being tough is actually prosecuting people in real courts, not going astray from our traditions.

The administration and some in Congress claim an urgent need for legislation. First, we’re talking about 10 people – administration says at most 75 – it’s odd to think there’s an emergent crisis. Especially since Justice claims it’s gotten 500 terrorist convictions in civilian courts. The Court’s decision repeatedly focused on how the existing courtmartial system is tooled up and ready to deal with terrorism cases now, if civilian courts aren’t appropriate.

Yesterday, Katyal debated Professor Yoo on NewsHour who feared that sources and methods would be revealed in trials. The courtmartial system has done a great job of protecting classified information, but there’s a deeper problem with Yoo’s argument: 95% of the evidence is the detainees’ own statements; most of the rest is videotapes from public broadcasts.  

The only thing that might come into play is the source and method of interrogation: why did the detainees say these things? That’s what’s hidden by the “sources and methods” language; what the military commission system is about is allowing decisionmakers to consider evidence obtained by coercion. One reason we know this: When Padilla was finally indicted in federal court, he wasn’t indicted for the dirty bomb or other bomb plots. Administration officials, anonymously, told the New York Times it couldn’t charge Padilla with a bomb plot because he and others had been coerced through physical means into giving testimony. That wouldn’t have stood up in civilian trial or courtsmartial. But they’d charged Padilla’s coconspirator in the commission process using the very same evidence at almost the same time. If we feel the need to introduce such evidence into trial, we should do so by clear congressional direction.

Katyal hoped that when Hamdan won, the administration would take a deep breath and think, this is something great about America. The founders anticipated that presidents would press their power. It’s a strength of the country that a Yemeni with a fourth-grade education can sue the government to claim a violation of our own basic laws. We should celebrate this; we are different, and can win the war on terror through soft power, our ability to settle disputes through law. The US has been bashed on Guantanamo, but if you look at what our government – all three branches – has done, we’re doing a lot better than many countries.