Prof. Praises Guantanamo Case

The professor who litigated this summer’s landmark U.S. Supreme Court case ruling that military commissions for Guantanamo Bay detainees violate Geneva Convention prohibitions lauded that decision at the Harvard Law Review’s annual Supreme Court Forum yesterday.

Georgetown University law professor Neal K. Katyal, a former Justice Department official, said in his address yesterday that the central issue in the case was whether presidents must follow the laws that govern warfare.

“This case is not just on military commissions alone,” Katyal said. “The central premise is that if Congress says, ‘Mr. President, you can’t do this,’ he must try to get the law changed and can’t just ignore that law in a series of secret memorandums.”

Katyal added that while courts historically defer to the president during wartime, this deference exists for two reasons: the expertise of the military and diplomatic bureaucracy and the fact that the president is accountable to the electorate.

“The case for deference is weakened when bureaucratic expertise is ignored,” Katyal said, noting that former U.S. Secretary of State Colin Powell and many military lawyers had been “cut out of the picture” during the creation of the military commissions.

Katyal thanked several Harvard Law School professors who helped him prepare for the case, including Loeb University Professor Laurence H. Tribe ’62, who co-wrote an influential 2002 piece with Katyal questioning the legality of the commissions; Story Professor of Law Daniel J. Meltzer ’72, who answered questions about federal jurisdiction; and Hauser Professor of Human Rights and Humanitarian Law Ryan Goodman, whose arguments on Common Article III of the Geneva Convention were ultimately adopted by the Court.

Katyal said that Tribe and Meltzer helped him practice before the actual oral arguments. After one session in which Tribe told him that his case was strong substantively but his performance a bit weak, Katyal hired a former “Cheers” actor for stage training.

“The guy came in and said, ‘Practice your oral argument in front of me, but do it holding my hand,’” Katyal recalled to loud laughs. “I was like, ‘Whatever.’”

“The key was to have a conversation with the justices instead of doing a formal, stiff presentation,” he added.

Joining Katyal at yesterday’s event was the Kennedy School’s Stanton Professor of the First Amendment Frederick Schauer, who spoke about the judiciary’s agenda relative to that of the public—the topic of the 60-page foreword he wrote for the current issue of the Law Review.

Noting that Medicare, Social Security, fuel costs, taxes, and the war in Iraq are among the most salient political issues today, Schauer said that these “are all issues on which the Supreme Court has been largely invisible.”

He noted that at the time of Brown v. Board of Education, the nation was preoccupied with communism and that at the time of Roe v. Wade, the nation was preoccupied with Vietnam and the Watergate scandal.

“I am not claiming that the Supreme Court is not important,” Schauer said, pointing out the difference between “salience” and “importance.”

The annual event marked the publication of the Law Review’s first issue of the year, which covers the Supreme Court’s previous term.

The format of this year’s forum—Schauer and Katyal spoke individually about separate topics—was different from last year’s inaugural forum.

Then, Judge Richard A. Posner and two law professors openly debated the role of foreign court rulings in American law.

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.