Arguing with The Nine

President Obama hit the ground running today, his first acts designed to remove some of the moral stain on our nation:

In the first hours of his presidency, President Obama directed an immediate halt to the Bush administration’s military commissions system for prosecuting detainees at the detention center at Guantánamo Bay, Cuba. [Link]

Not only that, but guess who the new lead prosecutor at Guantanamo Bay is? David “YOU CAN’T HANDLE THE TRUTH” Iglesias:

Fired New Mexico US Attorney David Iglesias will be a lead prosecutor at Guantanamo Bay, Cuba when and terror trials resume there, he told a New Mexico television station this morning.

The move has doubly powerful symbolism: Iglesias is recently famous for being fired for refusing to compromise his political independence, but he knows Guantanamo Bay well: He was the Navy defense lawyer played by Tom Cruise in the film, “A Few Good Men,” one of three who defended marines at the naval base.

Iglesias, a Naval reservist, said he’d been activated as a Judge Advocate General “prosecuting terror cases out of Guantanamo.” [Link]

Shutting down Gitmo and appointing an attorney fired by Alberto Gonzales wasn’t enough though. Obama then asked Osama bin Laden’s driver’s lawyer (the oft-blogged about on SM, Neal Katyal), to serve as the Deputy Solicitor General of the United States:

It’s good to see that the grownups are back in charge at the Justice Department…


p>Neal Katyal, the Georgetown Law professor who successfully challenged the military trials in Guantanamo while representing Osama bin Laden’s driver, will be deputy solicitor general. He’ll join Elena Kagan, the dean of Harvard Law School, who has been nominated to be Solicitor General. [Link]

This puts Katyal one step closer (although it is doubtful it would happen in the next four years) to having a serious shot at becoming the first desi appointed to the SCOTUS. What is more likely is that Kagan will eventually be appointed to SCOTUS and Neal will take over as the main man. The thought of Nina Totenberg regularly quoting a Katyal argument (as he jousts with Roberts or Scalia) on NPR as I drive to and from work excites me to a level that is uncomfortable to admit.

The BLT blog however, does make a note of one potentially uncomfortable fact: Katyal has previously criticized his new boss:

The pick [of Katyal] also means the Justice Department’s Office of the Solicitor General could be led by two lawyers who have argued a combined two cases before the Supreme Court. Earlier this month, Obama announced the nomination of Elena Kagan, the dean of Harvard law School, to be solicitor general. Kagan, who has never argued before the high court, has received broad support in the legal community. A date for Kagan’s confirmation hearings has not been set.

An interesting aside: The Boston Globe, in this Jan. 6 story, noted that Kagan’s most influential scholarly writing was a 2001 defense of the Clinton administration’s assertion of the right to direct federal regulatory agencies without congressional or court involvement. Kagan argued that without centralized powers, agencies would suffer from “ossification syndrome.”

When her article was published in the Harvard Law Review, Katyal was among her critics. Kagan “invites the question of whether the vantage point of an administration that wants to get things done is the proper one for setting parameters in constitutional and administrative law,” wrote Katyal, according to the Globe…. [Link]

The combined limited experience does worry me a bit. Anyone that has listened to oral arguments in front of The Nine knows they can be pretty ruthless. Still, it looks like Katyal has a record of 1-1.

Katyal has argued one other case before the Court, Engquist v. Oregon Department of Agriculture, which held that a worker cannot bring an equal protection claim as a “class of one” in a public employment context. He was also lead counsel for the State of Louisiana in its petition for Rehearing in Kennedy v. Louisiana, which invalidated the death penalty for child rapists whose victims survive. [Link]

52 thoughts on “Arguing with The Nine

  1. 26 · Vikram said

    even if they were a signatory to the convention, they break the treaty vis a vis the United States when they directly target civilians.

    So are you saying that the US and UK broke the treaties they signed by their direct targeting of civilians in their indiscriminate bombings (including nuking) of many cities and therefore deserve to be tortured? Why not?

  2. Gama

    When has the U.S. deliberately targeted civilians? If you are talking about Hiroshima and Nagasaki, then yes there are people who count that as a war crime. The firebombing of Dresden by the allies in WWII was without a doubt a war crime. However, the immutable fact of life is that a law only has validity if there is force behind it. Thats why Truman wasn’t in the dock at Nuremberg but Herman Goring was.