MICHELE NORRIS, host:

Now we turn to Neal Katyal. He's the attorney who argued Salim Ahmed Hamdan's case before the Supreme Court. He's just returned from Guantanamo Bay, where he was visiting his client. Welcome to the program.

Mr. NEAL KATYAL (Attorney, Salim Ahmed Hamdan): Thank you, Michele.

NORRIS: You've been at the Senate Judiciary Committee hearings that Ari Shapiro was just reporting on, what was striking to you, there?

Mr. KATYAL: I think the most striking thing, was the fact that we're having a hearing at all. I mean, four years and eight months ago, I testified before the same body, the Senate Judiciary Committee, and said that, if President Bush has his way and has his own set of military commission trials without congressional authorization, the result will be no convictions and the Supreme Court overturning President Bush's decision. And of course, here we are. It took the Supreme Court to rein it in. The Bush Administration said to Congress, then, don't worry, I have the power to do this on my own.

Well, it turns out he didn't. And in the interim, not a single person has been tried in these military commissions. Only ten were indicted.

The other striking thing, it seems to me, was the kind of reaffirmation of our founders' vision of the Constitution, embodied in today's hearings. I mean the Senators on both sides - Senators Specter and Graham you heard from on the previous report, and as well as a bunch of Democrats - all talked about the need for Congress to be involved. And, for our core values, embodied in the Uniform Code of Military Justice, our system of existing military law, to be followed, before kind of striking out and making radical changes which is what the administration has sought.

NORRIS: What you also heard in today's hearing, is the American spirit of debate. The Senators are very divided on this issue, do you think in the end, that Congress will come up with a system that will ultimately give your client what he's been seeking - a fair trial?

Mr. KATYAL: Well, that's the Supreme Court's mandate, that a fair trial be given. And it turns out that there is a system on the books that provides that fair trial now, as the Supreme Court said, and that's called a Court Martial.

Congress, in 1916, passed a law that said that trials of terrorism suspects can take place in these Courts Martial, and they're on the books now and we've used them hundreds of times in the battlefields of Iraq and Afghanistan. And if we use them now, we can get those fair trials. If we adopt the Bush Administration's solution, as some new fangled system, the result is going to be a whole bunch more litigation right now, tied up in courts for years, again, and perhaps again, a reversal by the Supreme Court if these policies are adopted, of not really having fair trials. So it seems to me, as Senator Graham said, let's work with the existing system instead of junking it.

NORRIS: I'd also like to get your thoughts on this announcement from the White House. As we reported, the White House announced that Article Three of the Geneva Convention applies to your client and many other detainees, how does that change your legal strategy?

Mr. KATYAL: Well I think the decision today, announced today by the Defense Department, is a straightforward application of what the Supreme Court said in the Hamdan Case; which was to reverse, I think, a terrible Bush Administration policy, that Common Article Three only applies in the most limited of circumstances - something that's a break from how previous administration's have viewed the article, indeed, how the rest of the world views the article. And so, once the Supreme Court decided that the administration was wrong on Common Article Three, it returns to the normal existing baseline that this country has followed since the Geneva Conventions - which is to protect people with minimal standards. I mean Common Article Three is not some kind of extensive code; it's just the most minimal rudimentary requirements of battlefield justice.

NORRIS: And just quickly, before we let you go, do you think that today's announcement means that Guantanamo Bay will continue to function as a prison?

Mr. KATYAL: Well the administration certainly said that, they continue to want to use it, but there's a real question here as to whether Guantanamo Bay has outlived its usefulness. The administration picked Guantanamo Bay because it was a legal black hole, because they thought that no laws would touch anything that happened there. And the Supreme Court in the Hamdan Case, as well as in a case two years ago, called Rasul, said to the administration - you know that's not true, Guantanamo Bay is for all practical purposes U.S. territory, and our laws and Constitution apply there.

NORRIS: Neal Katyal thanks so much.

Mr. KATYAL: Thank you.

NORRIS: That was attorney Neal Katyal who represents Salim Ahmed Hamdan. He's also a professor of law at Georgetown University.

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