16 Sep Katyal v. Yoo on Hamdan – Clash of the Executive Power Titans
One of the nice things about my time visiting here at William & Mary School of Law is the opportunity to attend conferences like the “Supreme Court Preview” sponsored by W&M’s Institute for the Bill of Rights Law. Tonight I attended a panel which included both Georgetown Law professor Neal Katyal, the attorney who argued and won the Hamdan case invalidating military commissions, and John Yoo, the UC Berkeley law prof who is credited with designing the military commissions in the first place.
The panel also included leading scholars like Walter Dellinger, of Duke Law (and the Clinton Administration) as well as SCOTUSBLog correspondent (and longtime Supreme Court correspondent) Lyle Denniston. But for me, the most interesting exchange was between Katyal and Yoo, who are probably the leading executive power scholars of their generation (and diametrically opposed on most issues). The following is based on my recollections and should not be taken as a verbatim transcript.
Katyal argued that Hamdan was an easy and obvious case. It was obvious that military commissions needed congressional approval and that the existing statutes didn’t authorize these particular commissions. And he went further, making the argument that if Congress creates a two-tier system of justice, with military commissions for non-American detainees and regular trials or court martials for the rest, it would raise serious problems – maybe even constitutional problems. As he colorfully puts it, the American people should not support giving non-Americans a beat-up Chevy version of justice while preserving a Cadillac version for themselves.
Yoo argued that Hamdan was a difficult case, allowing (as Katyal did not) that the other side had a reasonable argument. Still, he maintained that at the time the commissions were created in November 2001, it was reasonable for the Administration’s lawyers to believe that such commissions (which follow the precedents set by Roosevelt during World War II) were perfectly legal. Moreover, Yoo pointed out that military commissions had been used for 200 years without judicial interference or disapproval. Finally, Yoo argued that the Hamdan court has essentially required Congress to specify each and every power that it delegates to the President in wartime, a result which strongly departs from past practices during wartime.
I obviously side with Yoo on this stuff, but I thought both were very persuasive. I was more interested in the fact that the panel had a reasonable and respectful exchange over a very complex and difficult issue. There was no bomb-throwing on either side nor any accusations of bad faith or “war crimes.” This is the type of reasonable debate we need on these sorts of topics, but one that we too often go without.
The accusations of war crimes (and I don’t know what Professor Ku is suggesting by the quote marks) are, surely, something that Mr Yoo can’t avoid. He has endorsed, while a legal advisor and a senior member of the Administration, acts that constitute international crimes. While Professor Ku may not agree with the instruments – including common art. 3 – that establish those crimes, one can see no basis for doubting the contention that Mr Yoo has committed such crimes.
This post begs a question or two Julian:
What would constitute bad faith or war crimes?
Those are questions of fact. As for debate, I’ve been challenging you to debate these issues unanswered for some time now. I hereby renew the call, as politiely and respectfully as I can.
And the issue here would be a good place to start: Yoo’s claim concerning Hamdan is plainly false. What the court said was that the President had to obey the law, not that Congress had to authorize him to use his discretion in areas where the law permits.
And that is an issue that goes back to Prof. Yoo’s 2001.09.25 OLC memo in which claimed that the President could do literally anything he pleased solely at his own discretion regardless of the laws, the Congress, or the courts.
That claim is clearly wrong, and once again, I challenge you to a public debate on the matter.
Ah, yes, the essential value of civilized debate. Without it, democracy – modern civilization itself – is lost. Thank you, thank you, Prof. Ku, for reminding us of this. That the Supreme Court has, once again, considered John Yoo’s views unconstitutional is beside the point. So is the fact that, directly as a consequence of such views, thousands of people (guilty or innocent is beyond the point) have been kidnapped, murdered and/or tortured. Charlie, don’t bother, Prof. Ku will never abandon his ivory tower over these issues. Why? Because he’s perfectly aware of two things: 1. His academic views on issues such as torture, murder and kidnapping in the context of International Law are held only by a handful of scholars. 2. Different kinds of organizations in the U.S. (i.e., universities, publishing houses, think tanks, mainstream media), will pay (quite well) for extremists of this sort to continue expressing and developing their views, as a matter of policy, simply because they are different. Promoting diversity has this side to it. In other words, Prof. Ku has found his niche in the legal market. Who do you think you are, Charlie? How dare you try to put at risk the intellectual… Read more »
Heh. Well Random, all I know is that I’ve asked a fair question in all seriousness, and I hope that Julian and / or Prof. Yoo will answer it the same way.
It is an important issue.
Charlie, I’ve been reading this blog long enough and seen how many times your requests haven’t been attended, despite the obvious fact that (1) you know very well what you’re talking about and (2) are willing to engage in a civilized debate. Indeed, it *is* an important issue. I’d even say it’s the most important issue in all of Bush II’s mandate, if you just stop to consider the amount, graveness and long-lasting effects that the world’s sole superpower can cause, directly and indirectly, to its own country and the rest of the planet, by embracing blatantly lawless policies that cause murder, torture and kidnappings, at an international level And I’m being totally serious about the money thing. Money is the only reason I can think of when a professional specilized in the field — i.e., Prof. Ku — systematically sides with the nightmarish, unwarranted positions of the key legal architect of state-sponsored kidnapping, torture and murder. What else could explain (not that I think it’s admissible) giving continuous support to a guy who, speaking as a lawyer and legal scholar, argues that the President of the US is constitutionally empowered to order the crushing of the testicles of a… Read more »
My, some of the commenters here seem to believe that simply because the Hamdan tribunals were thrown out, their view of international obligations and war crimes has been validated.
A remarkable stretch of a very narrow ruling.
Katyal stands victorious, yet doesn’t stretch to such absurdities. Doesn’t that at least give one a pause for thought before drawing up the fantasy jury line-up for Yoo’s trial?
Matthew,
That’s no remarkable stretch: it’s just a consequence of the the administration’s arguments being refuted. Facts are facts.