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.