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LAWYER OF THE YEAR | FROM THE UPCOMING ISSUE
RUNNER-UP | Neal K. Katyal
An unassuming, quiet lawyer makes history
Marcia Coyle/Staff reporter
December 14, 2006
Washington-A less confident person would have thought hopeless Salim Hamdan's challenge to President Bush's order establishing military commissions to try enemy combatants. His lawyer, Neal K. Katyal, never did, despite predictions of defeat in the U.S. Supreme Court by many leading legal experts. Katyal was confident, say his colleagues, not overconfident, and he never wavered.
The justices' ruling last June in Hamdan v. Rumsfeld has been described by one constitutional law scholar as "perhaps the most important separation-of-powers decision ever." The court held in a 5-3 vote that the military commissions violated military and international law.
In a soft-spoken, unassuming manner, Katyal, a Georgetown University Law Center professor, downplays his central role in this landmark legal battle by generously sharing credit with current and retired military lawyers-some of whom risked careers-a phalanx of loyal Georgetown and Yale Law School law students, numerous law firms willing to help despite an unsympathetic client, and many of the nation's top legal academics.
For Katyal, who made his first high court appearance in Hamdan, the decision was the pinnacle of an extraordinary odyssey that has taken him from the classroom to Guantánamo Bay to the federal courts to the halls of Congress to the U.S. Supreme Court and back as the government now seeks to apply a new military commission law to the federal court cases of Hamdan and other detainees.
Shortly after the Supreme Court ruled, Katyal and his co-counsel, Navy Lieutenant Commander Charles Swift, were drawn into the intense negotiations in Congress over how to craft new commission procedures. "I went from being a pretend Supreme Court litigator to being a pretend lobbyist," Katyal chuckled.
Nothing 'pretend'
There is nothing "pretend" about Katyal, said Swift. His genius, he said, is best seen in what he did and what the government never did when faced with the problem of legal process for the detainees in the war on terror.
"Neal listened to the military very closely," said Swift. "He was willing to go anywhere and listen to anyone who had something with the potential to contribute. He valued everyone's efforts. Ultimately he came to an independent conclusion regardless of politics or what he wanted the answer to be, and he put it together into a coherent and powerful legal strategy."
As a person, Swift added, Katyal is "one of the very few people in the whole world I would trust anything to-my life, my reputation, my family. As I look back on it, I already have."
Yale Law Professor Akhil Amar once described Hamdan as involving six areas of the law, none of which is taught in most law schools. Besides mastering those areas, Katyal contributed experience as a Supreme Court clerk and a national security advisor in the Clinton Justice Department. He had worked on amicus briefs in other Supreme Court cases and on the litigation stemming from the Bush-Gore election battle.
Covington & Burling partner David Remes, who coordinated the stunning amicus effort in Hamdan-more than three dozen briefs-said, "Without the personal connection that Neal had with so many of these lawyers and amici and without being held by them in such high esteem, I don't think we could have had an amicus effort anywhere near as effective."
Katyal poured hours into argument preparation: 15 practice sessions, dry-runs across the country before lawyers who intimidated him the most and counseling by an advocacy coach. He spent a grant and $40,000 of his own funds on the case. He also maintained his full teaching load and remained "centered," he said, by his wife and three young children.
Katyal and Swift, who must leave the Navy this spring after being passed over for promotion, will stay with Hamdan, who now faces a military commission under what Katyal calls "the beat-up Chevy standard of justice" enacted by Congress.
"He really, really wants a fair trial," said Katyal. "We're looking forward to federal court."
