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Meet the DOJ Lawyers Who Defended Terrorist Detainees

8:19 PM, Mar 3, 2010 • By THOMAS JOSCELYN
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As the controversy heats up over the DOJ lawyers who once represented, or advocated on behalf of, al Qaeda and Taliban members, it is worth taking a quick look at their body of work.

Neal Katyal is now the principal deputy solicitor general. Previously, Katyal was a law professor and represented Salim Hamdan before the Supreme Court. The finding for Hamdan: The court ended up throwing out the military commission system as it was first established by President Bush. Congress then had to reauthorize the military commissions.

Katyal’s defenders have been quick to advocate on his behalf, claiming he is talented lawyer. Maybe so, but let’s look at his handling of the Salim Hamdan case, which was a victory for his client.

Hamdan is an admitted bodyguard and driver for Osama bin Laden. He swore allegiance to his master and faithfully served him from 1996 to 2001 -- as al Qaeda was plotting multiple acts of terror, including the September 11 attacks.

Katyal has called Hamdan a "simple driver." But Hamdan was not a "simple driver." He was captured with two SA-7 shoulder-fired missiles in his trunk while driving to a battlefield in Afghanistan. (See below.) Moreover, only the most trusted al Qaeda personnel would be allowed to serve bin Laden for so long -- protecting the terror master as he plotted to kill thousands of civilians.


 

It is troubling that Katyal would dismiss the seriousness of an al Qaeda agent’s record out of hand.
 
Katyal has made some other questionable comments about Hamdan and the military commissions as well. In a piece for Slate in December 2007, Katyal started off by lamenting the fact that Hamdan was not being tried in a regal Washingtonian court, but instead in a “rickety courtroom at Guantanamo.” Katyal then compared Hamdan to your average green-card holder in America. Of the military commissions he wrote:
 

These trials are not “equal justice”: For the first time since equality was written into our Constitution, America has created one criminal trial for “us” and one for “them.”The rules for the Guantanamo trials apply only to foreigners—the millions of green-card holders and five billion people on the globe who are not American citizens. An American citizen, even one who commits the most horrible and treasonous act (such as the detonation of a weapon of mass destruction), gets the Cadillac version of justice—a criminal trial in federal court. Meanwhile, a green-card holder alleged to have committed a far less egregious offense gets the beat-up Chevy: a military commission at Guantanamo. Before that commission, that noncitizen will have few of the very rights America has championed abroad, and he can be sentenced to death. 

Katyal is flat out wrong when he says that the Bush administration’s military commissions were the “first time” America has attempted to dispense “justice” in such a manner. Military commissions (tribunals) have a long history in this country dating back to the founding. The Obama administration is even using them to try Gitmo detainees. 

What’s worse is that Katyal didn't seem to understand that the “them” are al Qaeda. And only someone who cannot tell the difference between us and our terrorist enemies would compare al Qaeda members to “green-card holders.”

There is nothing wrong, in principle, with Katyal being a staunch critic of military commissions – the commissions certainly have their flaws. For example, Katyal’s own client received a ridiculously lenient sentence (basically amounting to time-served of five years plus a few months) after being found guilty of providing material support to al Qaeda. But Katyal went way beyond rational criticism of the system. In the same piece in which he compared his al Qaeda client to “green-card holders,” Katyal wrote: “The judges, to make matters worse, are military officers who have been hand-picked for this task. Some even said in speeches before being chosen that the Guantanamo system is fair and legal.”

The horror! Note that this same system, which was supposedly rigged to keep detainees locked up forever, basically freed Hamdan outright.

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