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.
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.
Still other lawyers did work on behalf of these well known terrorists: Jose Padilla (an al Qaeda operative dispatched by senior al Qaeda terrorists to launch attacks inside America in 2002), John Walker Lindh (the American Taliban), and Saleh al Marri (who 9/11 mastermind Khalid Sheikh Mohammed sent to America on September 10, 2001 in anticipation of committing future attacks).
Now, we don’t know what assignments these lawyers have taken on inside government. But we do know that they openly opposed the American government for years, on behalf of al Qaeda terrorists, and their objections frequently went beyond rational, principled criticisms of detainee policy.
It is one thing to raise legal objections to detainee policy. It is quite another to compare a known al Qaeda member to your average “green-card holder,” or to claim that Omar Khadr’s rights as a “child” have been abused.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.