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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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In his Slate piece, Katyal also lamented: “The trial in Guantanamo is explicitly proceeding based on the administration's belief that a detainee has no constitutional rights…”

Do “war on terror” detainees deserve full constitutional rights? My hunch is that most Americans would say no. And, ironically, so has Neal Katyal, when it comes to the detainees held at Bagram. Katyal has reportedly defended the indefinite detention of terrorist suspects as a member of the Obama administration.

This speaks well of Katyal as it shows he is capable of making a responsible national security argument. Katyal’s defenders say he has always seen a difference between Bagram and Guantanamo because, well, one is at an airbase in Cuba and the other is the middle of a warzone in Afghanistan.

But leave it to a lawyer to argue that the Constitution is under assault if detainees are tried by a military commission in Cuba, while everything is just fine if (all else equal) they are held indefinitely without habeas rights in Afghanistan.

One other note about Katyal: He has lamented the slow pace at which the military commissions moved during the Bush years. And they certainly did move at a snail’s pace. But as Time magazine has reported, Katyal helped build “a defense that delayed Hamdan's military tribunal for years as it gradually made its way through the courts.” That is, those delays are owed, in large part, to Katyal’s handiwork.

Another one of the DOJ lawyers who has advocated on behalf of detainees is Jennifer Daskal, who was a human rights activist. It is not clear why Daskal’s résumé qualifies her for a position working on detainee legal questions.

One of the detainees Daskal advocated for is Omar Khadr -- who allegedly threw a hand grenade that killed an Army medic. Another one of the DOJ lawyers named in recent press accounts worked on behalf of Khadr for a time as well. 

Prior to joining the DOJ, Daskal was one of the human rights lawyers who openly urged President Obama to stop the military proceedings against Omar Khadr, calling him a “child soldier.” 
 
Khadr was neither a child, nor a soldier, at the time he reportedly killed an Army medic. Khadr comes from a known al Qaeda family dedicated to Osama bin Laden. He was trained in al Qaeda camps and served a senior member of al Qaeda. There is even a video of Khadr manufacturing and placing IED's in Afghanistan. Khadr is a terrorist, not a soldier.
 
Khadr was 15 years old when he was taken into custody and is in his early 20s today. We regularly try 15 year olds for crimes as adults in America. Moreover, Khadr only survived the raid he fought in because Army medics, other than the one he probably killed, saved his life. Khadr wouldn’t even be alive today if it weren’t for them. (For more on Daskal see Meghan Clyne’s New York Post column.)  
 
Other lawyers now at the DOJ worked on the historic Boumediene case. That case established the Gitmo detainees' right to challenge their detention in habeas corpus hearings. In effect, the habeas proceedings have taken sensitive national security and detention questions out of the hands of experienced military and intelligence personnel, and put them into the hands of federal judges with no counterterrorism training or expertise. That lack of experience shows. For example, in one recent decision a federal judge compared al Qaeda's secure safe houses (where training, plotting and other nefarious activities occur) to “youth hostels.” The habeas decisions are filled with errors of omission, fact, and logic.

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