NEAL KATYAL
Principal Deputy Solicitor General
The U.S. Supreme Court has a tendency to defer to the president in times of war. Even Neal Katyal has called himself a “presidential deferentialist.” But not absolutely. When he read the White House news release announcing President George W. Bush’s plan for military commissions to try terrorism detainees, he told Legal Times in 2006, “I went into my classroom and said, ‘Hah. I’ve found something that’s totally unconstitutional.’ “
The surprise was that Katyal, making his first high court argument, convinced five justices to agree. In Hamdan v. Rumsfeld, the Supreme Court upended the Bush administration’s plans to judge Guantánamo Bay, Cuba, detainees in streamlined military commissions, ruling that the commissions as proposed were illegal because they neither operated by the rules of regular courts-martial nor were authorized by Congress. It was the first of three high court decisions in Bush’s second term that ruled against his detainee policy, and its effects are still being felt today as the current administration very publicly struggles with how to try terrorism suspects.
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