Arguing with The Nine

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

    Not so fast. Article 2 of the US constitution clearly states the president must say the oath, as worded, before executing presidential duties. i understand he took the oath again, after flubbing it the first time, but this act to remove our moral stain occured before the oath. so it doens’t count.

  2. i’m sure if someone has a problem with it and pushes the issue to court, he will have no problem resigning everything he has signed.

  3. Actually, Pres. Obama didn’t flub it – the chief justice mixed up the wording. And, I guess Obama took the oath again yesterday just to be on the safe side.

  4. The thought of Nina Totenberg regularly quoting a Katyal argument (as he jousts with Roberts or Scalia) on NPR

    Shit! I need to wipe off my keyboard now.

  5. I have to say, from a left wing/progressive perspective, Obama’s Cabinet appointments except for Linda Solis at Labor have been pretty centrist or even center right. However, Obama has knocked the ball out of the park and into space when it comes to his staffing of the office of Legal Counsel. After the era of Yoo and Addington, its really nice to see the new staff. Most of the new appointments have been the harshest critics of torture, Gitmo, unitary executive and other excesses of the Bush era. On the legal side, yes, we did.

  6. 4 · Pagal_Aadmi_for_debauchery said

    Shit! I need to wipe off my keyboard now.

    i thought miss manners said that this sort of thing wasn’t acceptable at work after the clinton era, PAfD.

  8. 7 · DizzyDesi said

    I wouldn’t celebrate…

    Sure… Given that most of the inmates weren’t even terrorists in the first place, “returning” to terrorism is an interesting choice. And who doesn’t love the vagueness of:

    18 former detainees are confirmed as “returning to the fight” combined with

    Morrell declined to provide details such as the identity of the former detainees, why and where they were released or what actions they have taken since leaving US custody.

    It is not as if it wasn’t in the Pentagon’s interest to justify their policies in the first place, or that they haven’t been entirely trustworthy in all their statements about the war so far.

  9. 3 · Lynn said

    Actually, Pres. Obama didn’t flub it

    nah. liberal press bias. they both messed up. obama started it by starting too soon. i think that threw roberts off, who then flubbed it badly (to/faithfuly). obama caught it and roberts corrected himself, only to have obama flub himself.

  10. 7 · DizzyDesi said

    Obama had no choice, Guantanamo Bay had become a cause celebre. But I’m betting that the republicans will gain seats in 2010

    Well the opposition party historically gains in the president’s first midterm election. So that’s a pretty safe bet.

  11. Plus, the Republicans have lost 14 Senate seats and close to 50 House seats in the past 2 elections, so they have really nowhere to go but up.

  12. 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.

    Yes that is exciting to me too 🙂

  14. Being a govt. representative, I guess Neal will next get involved with the case of Daniel Pearl’s murder mystery that has been getting mysterious lately. Mahmud–Saeed-Pearl-KSM–Baer connection remains the key to unravelling the 9/11 conspiracy. Note there is also an Indian-American connection – Asra Q. Nomani friend of Pearl and his wife Mariana. And I guess folks know the relevant Bradd Pitt-Angelina Jolie’s film.

  15. It’s hard to say “limited experience” and Elena Kagan in the same sentence. Until the two most recent solicitors general, most SGs came from academia and had little experience arguing before the Court. SGs are meant to be brilliant legal minds–they can practice oral argument when the need arises.

  17. delurker

    There is a huge population that believes the Obama’s rule will ensure that the republican party is in a one way downward spiral. I agree with what you say. (What you mentioned was a large part of my reasoning, along with fivethirtyeight’s analysis that voting patterns had not really changed as much as hyped in the MSM.)

    Sure… Given that most of the inmates weren’t even terrorists in the first place, “returning” to terrorism is an interesting choice. And who doesn’t love the vagueness of:

    Pretty sure that a few terrorists will be set free. What’s worse is that their release will give a huge fillip to the movement, which will be far worse than anything the terrorists themselves do. The hope is that the goodwill gained by closing Guantanamo Bay will more than compensate for this. But it could go both ways. The moral aspect is a plus, but it looks like Obama belongs in the “realist” camp. This means that he will do a lot of things that are morally ambiguous. Like pressuring India not to take action as further terrorist attacks occur and cutting deals with the Taliban. The analysis I have heard on NPR from his purported advisers (mainly Zbigniew Brzezinski) has not been encouraging.

  18. Like pressuring India not to take action as further terrorist attacks occur

    No one needs to pressure India into doing that…they do that naturally anyway.

  19. 17 · DizzyDesi said

    There is a huge population that believes the Obama’s rule will ensure that the republican party is in a one way downward spiral. I agree with what you say. (What you mentioned was a large part of my reasoning, along with fivethirtyeight’s analysis that voting patterns had not really changed as much as hyped in the MSM.)

    Yeah. As much I would like to see the demise of the Republican Party as we know it now (the anti-science, pro-ignorance, pro-torture, relying on wedge social issues), it’s probably going to stick around.

  21. 3 days and excellent 3 days so far for Obama. Fox is watching like a Hawk. But he seems to have impressed brilliantly: pay freeze, gitmo closure and $275B stimulus all were a breeze! An accomplishment each day! Goodluck for the man who’s been hoped will be a Machine!!!

  22. And we get word today that one of the released prisoners has re-joined Al-Qeada in Yemen. People who don’t sign treaties, kill civilians wantonly, and have not signed the Geneva Conventions should not be given the protection of those conventions. The moral stain is on the monsters who commit these crimes, not the ones who punish them.

  23. Vikram,

    My take: No place for Gitmo prisoners in the world right? So release them and take them out while they are in action. If they are in action justice delivered else they are living in peace or at worst growing poppy in the ‘uncontrolled’ areas of PUKIsatan! Can’t really say just because they are at GitMo means they are all terrorists considering the oblique angle of a blog called ‘war on pakistan’.

  24. 22 · Vikram said

    And we get word today that one of the released prisoners has re-joined Al-Qeada in Yemen. People who don’t sign treaties, kill civilians wantonly, and have not signed the Geneva Conventions should not be given the protection of those conventions. The moral stain is on the monsters who commit these crimes, not the ones who punish them.

    I agree! Preferably some public stonings of some Ay-rab towelheads, or even better literal manhunts with hounds and guns, for the likes of Vikram.

  25. People who don’t sign treaties, kill civilians wantonly, and have not signed the Geneva Conventions should not be given the protection of those conventions.

    Well, first of all, people don’t sign treaties…leaving that aside, are you arguing that they are not entitled to any rights as prisoners because they don’t sign treaties, or because they kill civilians? The two are entirely separate issues.

  26. How can a treaty apply to an organization which is not a signatory to it? Also even if they were a signatory to the convention, they break the treaty vis a vis the United States when they directly target civilians.

    As for commenter #24, I’m sorry you are unable to make a coherent argument instead of using ridiculous hyperbole.

  27. 26 · Vikram said

    As for commenter #24, I’m sorry you are unable to make a coherent argument instead of using ridiculous hyperbole.

    Pity doesn’t become a manly manly man like you, Vikram. The only hyperbole in my statement was suggesting that you should personally engage in violence against them, as opposed to outsourcing it to hired goons. If you want us to be seen to be doing something, however irrelevant, counterproductive or useless, wouldn’t it be much more fun to do it yourself?

  28. Yes, I would love 10 minutes in a room with Khalid Sheikh Mohammed and a baseball bat. If that puts me out of your good graces, then I’ll be fine.

  29. 28 · Vikram said

    Yes, I would love 10 minutes in a room with Khalid Sheikh Mohammed and a baseball bat

    Apparently, everybody in Gitmo is KSM, and why bother with any legal process to actually try and establish any of that pesky shite. F—ing muslins deserve what’s coming to them anyway.

  30. Let me add that my comment above is a personal opinion. It shouldn’t bear on the fact that these people at GITMO should not be accorded the same rights as a common criminal in the U.S.

  31. 30 · Vikram said

    Let me add that my comment above is a personal opinion. It shouldn’t bear on the fact that these people at GITMO should not be accorded the same rights as a common criminal in the U.S.

    The issue here happens to be that “those people” in Gitmo are just random ass people that we picked up off the street. We don’t really know what they deserve because half the time we don’t even know who the hell they are. We haven’t bothered investigating anything or fact-finding to determine their guilt or culpability.

    Do an investigation, charge them with something. Give them a trial with enough transparency that we know the evidence brought against them is reliable. You can even relax the burden of proof from “Beyond a reasonable doubt” all the way down to “preponderance of evidence” if you want. But the entire point here is that if we’re going to be punishing people we ought to have a reason for doing so. The government should not have the authority to arbitrarily dispense pain on people just because it feels like it. That’s called tyranny.

    Putting that kind of faith in the government is not a healthy practice for any citizen of a republic to indulge in. You are simply relinquishing inordinate levels of power to the government. Say something Dick Cheney doesn’t like and you find yourself charged as an “enemy combatant” and languish in prison for God-only-knows how long. Nobody knows where you went or what happened to you.

  32. We haven’t bothered investigating anything or fact-finding to determine their guilt or culpability.

    That’s ok because we know they are BAD PEOPLE and GITMO KEEPS US SAFE!

  33. Pavan

    I couldn’t agree with you more. The major mistake of the Bush administration has been the snail like pace of the trials. They shouldn’t be there forever. Charge them in military tribunals, if they are found guilty then punish them, otherwise let them go. No government should have the right to keep someone indefinitely without charge. My argument with Blood! is that they somehow should be treated as prisoners of war or should be brought into American criminal courts. They are not and they should not be. The tribunals done quickly suffice for our purposes. As well, those that are clear members of Al-Qeada and potentially high intelligence value targets should not be treated with the same discretion we give to people under the Geneva Conventions.

  35. Honestly, I am beginning to wonder if there is any point in arguing with you. Let me explain again. There is a difference between what I would like to do in anger, and what should be done. If a man molests my child, you bet I would want to tear that person apart. But the state is better equipped to charge that person and go to trial. Similarly, I would love to get KSM in a room, but I can’t and shouldn’t be able to.

    You still in all of your posts have not responded substantively to why they should be given Geneva rights.

  36. From the article:

    The consequences go further. Crawford also told Woodward that the charges against al-Qahtani were dropped because he was tortured. This has devastating consequences for the Bush administration’s entire rationale for the new techniques of interrogation: that they would make the United States safer by producing intelligence and keeping dangerous individuals off the streets. We now know they do neither. The torture produced no useful information from al-Qahtani, and the cruelty heaped upon him will make it more difficult, if not impossible, to justify his long-term incarceration.

    So.. apart from everything around the techniques used in Gitmo, to the value of the information it produced, to the level of love it engendered for the US, to the extent to which it compromised US negotiating power on the treatment meted out to captured soldiers the government put in harm’s way, Gitmo was just a-ok.

    All this said Abhi is correct in saying that Obama’s actions were aimed at removing the moral stain, given that at a practical level, not much action will ensue from his Gitmo order for a while, and that the size of Gitmo at this point is “only” around 245.

  37. Ha. The only one of your list which might sway me is the practicality argument. If GITMO has produced no actionable intelligence (which I don’t cede) then close the damn thing down. However

    1. I could care less if people in other countries feel less love for us becuase of it, and
    2. The idea that Iraqi insurgents with a captured American soldier would be nice to he/she because we gave their buddies Geneva rights is absurd.

  38. 35 · Vikram said

    You still in all of your posts have not responded substantively to why they should be given Geneva rights.

    I don’t think they are quaint. I think the US has the responsibility not to torture its detainees, and the responsibility to ensure that they have direct access to due process where the accused has some legitimate ability to defend themselves. Assuming that non ideological judges are appointed, I do think the burden of evidence can be relaxed a bit in this context as compared to a jury of peers, but creating a situation where detainees or their lawyers have no effective ability to see or respond to this evidence under the blanket “national security” excuse that has been repeatedly bandied about is often tantamount to kangaroo courts. What Gitmo is today is an extrajudicial system where detainees were tortured and abused under a presumption of extreme guilt with absolutely nothing to show for it in return. The very fact that the government had to jump through constitutional hoops in the hope of finding some evasionary loophole that allowed them to do the things they did should be a screaming sign of its sketchiness.

    The only one of your list which might sway me is the practicality argument.

    Of course! Blood is satisfying.

  40. No one is tortured at GITMO (unless you call eating chicken three timed a week torture) Their meals are halal as well as gourmet. Many put on weight. The terrorists can see the Navy doctor anytime they requests. This is better than a soldier or Marine fighting in Iraq or stateside is treated. http://www.gitmocookbook.com/press.html.

    I would bet that if any of the terrorists released by obama returns to terrorsim it will be blamed on BUSH Because he tortured them with kindness.

  41. No one is tortured at GITMO (unless you call eating chicken three timed a week torture) Their meals are halal as well as gourmet. Many put on weight. The terrorists can see the Navy doctor anytime they requests. This is better than a soldier or Marine fighting in Iraq or stateside is treated. http://www.gitmocookbook.com/press.html. I would bet that if any of the terrorists released by obama returns to terrorsim it will be blamed on BUSH Because he tortured them with kindness.

    Steven Colbert has nothing on you, um assuming you meant that as parody.

  42. Yes, I would love 10 minutes in a room with Khalid Sheikh Mohammed and a baseball bat. If that puts me out of your good graces, then I’ll be fine.

    I would like 50 minutes with you in a room and a copy of the constitution.

  43. Yes, I would love 10 minutes in a room with Khalid Sheikh Mohammed and a baseball bat. If that puts me out of your good graces, then I’ll be fine.

    What if we give Khalid Sheikh Mohammed a baseball bat as well. Would you still like your 10 minutes? I am presuming you will take the deal as your righteous Jack Bauer anger will surely carry you to victory. Plus God is on your side.

  44. I am presuming you will take the deal as your righteous Jack Bauer anger will surely carry you to victory. Plus God is on your side.

    Come on. Dont blaspheme Jack Bauer?. He is just doing what needs to be done. 🙂 He is not happy about torture either.

  46. nah. liberal press bias. they both messed up. obama started it by starting too soon. i think that threw roberts off, who then flubbed it badly (to/faithfuly). obama caught it and roberts corrected himself, only to have obama flub himself.

    Manju, the President never flubbed. First of all he was already President when Chief Justice Roberts, obviously laboring under the delusion that he was charged with turning a man or a Senator into a President, asked him, “Are you ready to take the oath, Senator?” And then, bear in mind Roberts had to administer the Presidential oath to a man who had just made a joke, while remembering that this same man had not approved his own appointment. That would have set him up for failure right away, especially when he was confronted midway with Obama’s famously pretty smile. Check it for yourself– Roberts was supposed to pause after “I, Barack Hussein Obama” for the President to say it, before plunging into “do solemnly swear”, so it was Roberts who tripped up, every step of the way, clearly having misunderestimated the delicate perils of his task sans teleprompter. Review events here!

  47. Pagal_Aadmi_for_debauchery,

    Did you bother to read the post after that. I made it clear that it was a personal human feeling I have to the man who masterminded 9/11. I don’t think I should be able to be in a room with him. We are merely debating what the government should classify these people as. To my post on KSM, it’s called human emotion. You probably haven’t experienced it much.

  48. Pagal_Aadmi_for_debauchery: “I would like 50 minutes with you in a room and a copy of the constitution.”

    You can have all the time you want, but considering this whole debate is a question of whether the U.S. constitution and its protection apply to foreign enemy combatants, I think our precious time together would be moot.

  50. 22 · Vikram said

    And we get word today that one of the released prisoners has re-joined Al-Qeada in Yemen.

    Blame the Bush administration for that since this happened on their watch. What does that have to do with Obama’s decision to close Guantanamo?