Tobin Harshaw points to a Politico article from a few weeks ago that reminds us what accused "terrorist sympathizer" and current Deputy Solicitor General Neal Katyal has been up to since joining the Obama administration. Katyla was lead counsel in the 2006 Hamdan v. Rumsfeld case, in which the Supreme Court rejected the Bush administration's military commissions:
According to a notice filed last week with the U.S. Court of Appeals for the D.C. Circuit, the government’s case for denying legal recourse to war-on-terror prisoners at Bagram will be argued by Principal Deputy Solicitor General Neal Katyal, 39.
It’s a curious position for Katyal since he became a star in the legal firmament by winning a major Supreme Court victory in 2006 on behalf of war-on-terror prisoners at Guantanamo. Katyal successfully argued Hamdan v. Rumsfeld, a case that prompted a 5 to 3 decision that the rules for the military commissions set up by the Bush Administration violated federal law and the Geneva Conventions.
A former detainee lawyer is now arguing -- as the Bush administration did with Gitmo -- that non-Afghan detainees at Bagram, who were not captured on the battlefield but in third countries and were taken to Bagram after the fact, have no right to challenge their detention in U.S. courts. Nothing unusual about this. Government lawyers are expected to argue the government's position, and do it well. Personally, I think this position is untenable: It's one thing to argue people captured while on the battlefield can be detained until the end of hostilities, but it's another to try to beat the system and deny people Habeas review by transferring them to Bagram instead of Gitmo, as the Bush administration did after the Boumediene decision. Now, the Obama administration is defending the government's authority to do so.
But there's only one reason the administration chose Katyal for this case: It wants to win.
The most absurd thing about the complaints over former human-rights advocates or lawyers who represented detainees "making policy" in the Obama administration is that the policies the administration has adopted so closely resemble those of the prior administration post-2006. That's part of what makes this administration such a disappointment to human-rights activists and civil libertarians. The same fact makes the neo-McCarthyist attacks of Keep America Safe a complete absurdity.
-- A. Serwer
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