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Wednesday, Oct 23, 2019

NRI attorney defends Osama's guard

Katyal was also named one of the leading "40 lawyers under 40" in the US, writes Kanupriya Vashisht.

india Updated: Sep 07, 2005 19:12 IST
Kanupriya Vashisht
Kanupriya Vashisht

An Indian-American lawyer, fighting for alleged driver and bodyguard of Osama bin Laden, is confronting the US military justice system that will try those accused of war crimes.

Georgetown Law Professor Neal Katyal, 34, is the lead attorney for the alleged "enemy combatant" Salim Ahmed Hamdan. It is one of the most widely covered cases in US -- Hamdan v. Rumsfeld, a federal challenge that knocks straight at the White House.

More than a dozen suits have been filed challenging the US government's detention and treatment of the 600 people who have now been held and detained in Guantanamo Bay in Cuba for over two years.

But the young dynamo's suit, however, goes a step further. It is the first to confront the presidentially-ordained military justice system that will try those accused of war crimes.

Katyal is representing Hamdan, a 34-year-old Yemeni, accused of being a driver and bodyguard of Osama bin Laden. He was arrested in Afghanistan in November 2001, and charged with one count of conspiracy. The government is implicating him in murder and terrorism wrought by Al-Qaeda.

"In these military tribunals, the President is acting more like a monarch than like a member of a democracy," says Katyal. "He has written all the laws, picked the prosecutors, picked the judges, and has even gone so far as to argue that the Supreme Court of the United States lacks the ability to review what happens at Guantanamo Bay," he adds.

In Katyal's view, President Bush doesn't have the power to create the military commissions without Congressional authorisation, and, because they're targeted exclusively at foreign prisoners, the commissions, he feels, violate equal protection guarantees.

It is widely expected the case will wind up in the Supreme Court of the United States.

The government contends that Hamdan and other so-called enemy combatants are not entitled to prisoner of war status and other protections of the Geneva Conventions because Al-Qaeda did not sign the treaty, which governs the treatment of civilians and soldiers in wartime.

Katyal, however, counters that Hamdan denies being an Al-Qaeda operative and the government has not employed a fair process to determine otherwise.

Hamdan acknowledges to being a driver for bin Laden, but maintains he is not a member of Al-Qaeda and that he is innocent of terrorism and other charges.

He may have taken up cudgels for an alleged terrorist, but Katyal has strong feelings about terrorism. "It is of course difficult in some ways to represent someone accused of association with bin Laden," he says.

As National Security Adviser at the Justice Department, Katyal was known for having a very hard line on terrorism and war criminals. "Even my academic writing is all about the need to be far tougher on crime than Americans have been. That said, I think there is a right and a wrong way to go about prosecuting terrorism cases, and we have definitely gone the wrong way at Guantanamo," he says.

"What has happened at Guantanamo is not faithful to what our country is about. It is a fundamental violation of our Constitution's commitment to equality - for it says that if you are a green card holder or a foreigner, you get sent to this inferior fake court, where you could be put to death or face life imprisonment. Never before has the American government so radically discriminated between foreigners and citizens," Katyal adds.

First Published: Sep 07, 2005 19:12 IST

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