By Ann W. Parks

Professor Neal Katyal with panelists Jamie Gorelick of WilmerHale and Professor Jack Goldsmith of Harvard Law School.

In an age where the threat to America’s security has no clear national borders, the laws relating to war become murky also. The Geneva Conventions may prescribe the laws between state actors, but what are the rules when the threat comes from a terror group? What happens when executive branch powers conflict with those views of Congress, or the courts? Should a national security court be created to try terror suspects — or is the already existing federal court system adequate to do the job?

Those were some of the questions asked at the April 10 conference celebrating Georgetown Law’s new Center on National Security and the Law. Georgetown Law Professor and Center Director Neal Katyal, who was installed the same day as the Paul and Patricia Saunders Professor of National Security Law, said in a brief opening speech that the goal of the center is to encourage people to think through the legal issues posed by the War on Terror — not as Democrats or Republicans, but as individuals working to find solutions to the problems. Among other things, the center will explore possible reforms to the Geneva Conventions and the designing of a bipartisan national security court.

“I and many of my colleagues here at Georgetown see the War on Terror as the next great legal challenge — in some ways it’s similar to, and different from, the challenge faced by the civil rights era in Brown v. Board of Education,” Katyal said. We can, he added, “literally change the world by thinking through these issues on a serious basis.”

Panels looked at the role of the Justice Department in the War on Terror; national security law challenges for the new presidential administration and the effectiveness of international law, particularly the Geneva Conventions.

Alberto Mora, who received the John F. Kennedy Profile in Courage award in 2006 for his campaign against the use of cruelty at the U.S. naval base at Guantanamo Bay, said during a luncheon address that he wished he had had this kind of resource to call upon when he was serving as general counsel of the Navy. While there is no denying that the nation faces a terrorist threat, America has responded with a policy of cruelty that has been devastating to national security and to alliances with other countries, Mora said. Practices against Mohamed al-Kahtani — the man some believe would have been a September 11 hijacker had he been allowed to enter the United States — have included isolation, various humiliations including the wearing of a leash, and the injection of intravenous fluids until the prisoner urinated on himself, he said.

“How did our nation come to use such cruelty in this way?” Mora asked.

Guiding principles

At his investiture ceremony as the Paul and Patricia Saunders Professor of National Security Law, Katyal said that while we cannot overestimate what happened on September 11, 2001, we should not forget what makes us Americans. The country began, he noted, out of the colonists’ complaints that their English king deprived them of trial by jury; rendered the military independent of and superior to civil power; and transported them across the sea to be tried for pretended offenses.

“The founders divided government and limited it in order to avoid these problems,” he said.

The new president, Katyal said, should be guided by six principles, consisting of an examination of the ways in which past presidents have handled security challenges; an insistence on legislative action, as opposed to executive decree; nondiscrimination practices with respect to aliens; compliance with the laws of war; a limited use of the federal courts; and the use of internal checks and balances on the executive branch.

“We won’t, of course, get all six of these all the time, no matter what enlightened leader we have in the future,” Katyal said. “But I do think we can do pretty well if we try.”

The day concluded with a dinner featuring remarks from Department of Homeland Security Secretary Michael Chertoff and from Paul Saunders (L’66), a partner at Cravath, Swaine & Moore and a Law Center Distinguished Visitor from Practice whose generosity made the professorship possible.