Counsel brings life experience to defense of Gitmo client

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BAR HARBOR – When Neal Katyal finally obtained permission to visit his client – Osama bin Laden’s driver, detained at Guantanamo Bay, Cuba – the man asked the Georgetown Law School professor a question he had to think about long and hard before answering.

A former U.S. Justice Department staff lawyer and member of Al Gore’s legal team that challenged the results of the 2000 presidential election, Katyal had come to believe that the military commissions created to try suspected terrorists were unconstitutional.

When Katyal was allowed to meet with his client, Salim Ahmed Hamdan, Hamdan’s first question was: “Why are you representing me? I’ve been told your last client was Al Gore.”

The answer, Katyal told the summer meeting of the Maine State Bar Association on Friday, was not about the fancy constitutional issues he eventually would argue before the nine justices of the Supreme Court.

It was much more personal than that, and a story familiar to first-generation Americans:

“My parents came to America from India with $8 in their pockets between them to give birth to me,” he said. “They picked it because they knew that, for the most part, they would be treated fairly. The same rules applied to citizens and foreigners.”

That changed on Nov. 13, 2001, Katyal said, when President Bush created the military commissions.

Under the executive order, the president chose the judges, prosecutors and defense attorneys; wrote the procedural rules; and said that no courts could review the commissions’ decisions. In the past, detainees were tried in military or civilian courts.

When news of the president’s secret memo creating the commissions was reported by the news media, Katyal said, he immediately thought it went against what the framers had in mind when they wrote the Constitution.

“I learned in the seventh grade,” he told the bar association, “that Congress makes the law, the president enforces the law, and the courts uphold the law.”

Katyal successfully argued before the U.S. Supreme Court that the military commissions created by the president were unconstitutional.

He said he agreed to represent Hamdan, a citizen of Yemen who was arrested in Afghanistan in 2000 and accused of being a terrorist, to challenge the president’s right to create such tribunals without the approval of Congress.

In explaining why it could not let Congress create the commissions, the administration said it would take too long for the House and the Senate to approve a bill and that trials needed to get started right away, Katyal said Friday.

To date, no trials have been held before the commissions.

In 2003 a lawyer, Navy Lt. Cmdr. Charles D. Swift, was appointed to represent Hamdan. Swift contacted Katyal and the two, along with others around the country, began strategizing.

The attorneys filed suit in 2004 in U.S. District Court in Seattle for reasons Katyal said Friday were too complicated to explain easily.

Their three main arguments were that the president’s actions violated:

. The separation of powers clause in the Constitution.

. The Geneva Conventions that outline the rights of prisoners of war.

. The laws of armed conflict in the Uniform Code of Military Justice.

They won the case in U.S. District Court, lost on appeal, and on June 29, 2006, won again when the U.S. Supreme Court announced it had ruled 5-3 in Hamdan’s favor.

“I was happy we had won,” Katyal said Friday, “but I was most happy about what it said about America. This was a case where a man with a fourth-grade education who can’t speak English was accused of conspiring with an evil man. He sued one of the most powerful men in the world, then took it to the nation’s highest court and won. That says there’s something fundamentally great about America.”

It was not the end of legal battle.

On Sept 6, 2006, Congress passed the Military Commissions Act, in essence creating a court that would deal only with noncitizens similar to the one Bush tried to create. Hamdan was charged again under the new law, Katyal said. Two weeks ago, the military judges who were to oversee the trials of detainees said the whole process violated the Geneva Conventions and dismissed the charges.

The administration has said it will hold Hamdan for the rest of his life, according to Katyal.

The law professor, who graduated from Dartmouth College and Yale University Law School, denied that he had been courageous when a lawyer attending Friday’s Bar Harbor meeting used the adjective to describe Katyal and Swift.

“I don’t think I was courageous,” he said. “After all, I have tenure. But my co-counsel was.”

Swift, who graduated from the U.S. Naval Academy in 1984, has been forced to retire. He will begin teaching this fall at Emory University Law School in Atlanta, according to Katyal.