Hamdan: International Law as a Weapon for the Prosecution

The ubiquitous Neal Katyal, a lawprof at Georgetown, is currently completing his oral argument at the Supreme Court on behalf of Hamdan. In addition to be Hamdan’s counsel of record, Katyal is a well-known legal scholar who presented a paper just this last weekend at the Yale Law symposium on executive power. He also has a very readable pragmatic defense of Hamdan in Yale Law’s Pocket Part. Here’s a useful excerpt.

[A] word about the role of international law in the case. It has been memorably said that the problem with using foreign law is that it’s like looking out over a crowd to pick out your friends. I share this general skepticism of foreign law, and that has led some to wonder how I could be arguing that Hamdan is protected by supposedly vague international treaties like the Geneva Conventions. The odd thing about the Hamdan case is that the prosecution, not the defendant, is invoking international law first. Military commissions can only try violations of international law, so the typical claim that international law has no place in our legal system cannot apply without undoing the prosecution itself

Ariel Lavinbuk also weighs in here with a more elaborate defense of his Slate article attack on the viability of conspiracy under the laws of war.

These are both very good arguments and although I haven’t changed my view as to how the case should come out, Katyal, Lavinbuk, et. al. have done a terrific job here. Surely, they have won three votes on this Court (Souter, Ginsburg, Stevens) and almost certainly the fourth (Breyer). The only question is whether they will get that elusive fifth vote.

BTW, stay tuned. Oral argument tapes should be released and on the web any minute now.