Hamdan Lawyer Reacts to Bush Tribunal Proposal

ROBERT SIEGEL, Host:

Neal Katyal is a professor at Georgetown Law School. He successfully argued the case of Salim Ahmed Hamdan before the Supreme Court. That's the case that invalidated the Bush administration's system of military tribunals. He says that even if Congress passes the bill the president wants, that will not survive court challenged.

NEAL KATYAL: What the president unveiled today was a really radical move designed to resurrect a system of martial law, indeed something that literally America's never seen. And it bears no resemblance to a court martial or an American trial or even a trial for Rwandan justice, for that matter. So I expect it to be invariably challenged.

SIEGEL: But if the president gets a bill out of Congress that says you can proceed, what happens next? Do you then bring a challenge on behalf of Salim Ahmed Hamdan and go to court challenging that law?

KATYAL: Well, I would expect a whole variety of challenges to be made by detainees who are facing these trials. If the president's bill is enacted into law it will enact, for example, the right to get - you get kicked out of your own criminal trial. It gives the prosecution the ability to do that. That's something that no American court, military or civilian, has permitted in 200 years. And I think it's a quite dramatic departure from our nation's traditions. And so I do expect an inevitable challenge and years of litigation to follow.

SIEGEL: The president says that the Supreme Court cited Common Article III of the Geneva Conventions, which is too vague, he said. That Congress should spell out what it is that is an affront to dignity or a violation of the kind of processes alluded to in that article. What's your understanding of what the article precludes in the way of a trial?

KATYAL: Common Article III has been described as the Geneva Conventions in miniature. It's kind of the most rudimentary protections of the laws of war. They are protections that the United States Senate ratified in 1955 by a super majority, and they have bound our nation for over 50 years.

The idea that these minimal, rudimentary protections are too vague is simply politics. It's not grounded in any rational fear, as the nation's military leaders have all said. The Judges Advocates General, who said, we train our troops to Common Article III. We're not worried about complying with Common Article III.

SIEGEL: Well is, for example, aggressive but not physically coercive questioning, perhaps even with some threat implied by questions, is that illegal under Common Article III?

KATYAL: I don't know of anyone, even the most liberal scholar of international law, who thinks that aggressive questioning by itself violates Common Article III. Of course not. And the proof is in the pudding. We've had these conventions on the books for 51 years and never have we had the kind of outlandish, fanciful legal interpretations that the administration is now offering.

And this is, I think, a very crucial point because whatever the president - whatever bill is passed by Congress, if any, Americans have to remember that how we treat our prisoners from other countries is how our troops are going to be treated when they're captured by other countries. And do Americans really want their sons or daughter tried under these kinds of circumstances and these types of elimination of the most foundational Geneva Convention protections?

SIEGEL: Of course, part of the argument for the administration here is that the enemy in the conflict that they're speaking of would just as soon decapitate somebody on the Internet as accord him some protections under the Geneva Conventions.

KATYAL: Of course. And the whole premise of the Geneva Conventions is not to protect you just against the enemy you face de jour but all enemies, present and future. And if America breaks from its longstanding tradition of being one of the leaders in the laws of war and protection of international humanitarian law the consequences, I think, are going to be quite grave. And that's why, after all, the Senate ratified the Geneva Conventions and indeed why every nation on earth now has ratified those conventions.

SIEGEL: I'm confused though as to in what way the president is being anything less than respectful of the Supreme Court here. He says, they threw out the system that I had proposed. The Supreme Court therefore has ruled that out. So I'm going to Congress to get a law to set up something else. Isn't that exactly what the Supreme Court told him to do?

KATYAL: The Supreme Court certainly said, and I think all reasonable scholars agree, that the Congress can enact a military commission bill with fair procedures that will survive court review. The president's bill today is not that bill.

SIEGEL: Professor Katyal, thank you very much for talking with us.

KATYAL: Thank you.

SIEGEL: That's Neal Katyal, who argued the case Hamdan v. Rumsfeld successfully before the United States Supreme Court.

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