Professor Neal Katyal's talk packed the auditorium.  Chicago-Kent ACS Member Craig Stern wrote on his blog, craggie.blogspot.com, about the talk.  The following is his account of Katyal's talk.  [Please note: The views expressed on the above blog are in no way affiliated with, nor endorsed by, the Chicago-Kent Chapter of ACS; they are solely the views of one of our members.]

Hamdan attorney: new law likely unconstitutional
By Chicago-Kent ACS Member Craig Stern — October 19, 2006

Professor Neal Katyal came to Chicago-Kent law school this afternoon to speak about his experience as the lead attorney in the Hamdan v. Rumsfeld case. There is a story on NPR which just about exactly sums up the factual history he gave us.

Interestingly, Katyal told us he is a bit of a conservative when it comes to the separation of powers: he believes in a unitary presidency with fairly broad powers. He also believes that terrorism is not merely a law enforcement issue, and there ought to be a method for detaining suspected terrorists before they go to trial.

So why did Katyal oppose the military tribunals so vehemently? Simple: they were outside the law, and indeed, outside the bounds of the Constitution. The legislature had abdicated its Constitutionally-mandated role in creating the tribunals and setting out concrete procedures by which detainees could be fairly tried.

The 14th Amendment, adopted in the wake of the Civil War, reads in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The framers of this amendment deliberately chose the word "person" rather than "citizen," says Katyal, and in so doing guaranteed non-citizens--including enemy combatants--the right to due process and a fair trial.

Given his confessed preference for a powerful, unitary executive branch, I thought it would be interesting to know what Katyal thought of the provision in the new Military Commissions Act of 2006 that grants the president "the authority for the United States to interpret the meaning and application of the Geneva Conventions." Could Congress grant the president such a power?

Katyal, in response, said: 1) Probably not, 2) it would be interesting to see how this interacts with some other case whose name I didn't catch, where I gather the Supreme Court dealt with some question of the president's ability (or lack thereof) to interpret treaties, and 3) the power to interpret treaties is the sort of thing that dictators love to wield. It brings them short-term political benefits when they declare a prisoner of war to be in a legal black hole, despite the injury that such behavior does to their international reputation and to the men in their military forces who must rely on those exact same treaties if they themselves are ever captured. It is for this reason, says Katyal, that such powers are held beyond the reach of short-lived career politicians in America, men who would willingly do long-term harm to their country for short-term gain to themselves. As to whether the act will be overturned, Katyal declined to speculate. It is an improvement over the situation before Hamdan, he said, in that at least Congress did not abdicate its duty to establish the tribunals and the rules governing them this time. Even so, however, he seemed fairly confident that the act would not survive judicial review.