Hanover —
Employing a skilled mixture of poignant and humorous anecdotes honed as a college debater — graduated Dartmouth in 1991 — Katyal, a 48-year-old Chicago-born son of Indian immigrants, focused on three Supreme Court cases in which he personally was involved. He spoke in the college’s Rockefeller Center before an audience of about 100, including community members, faculty and students, college President Phil Hanlon and his wife.
Katyal, who received a law degree from Yale, clerked for Supreme Court Justice Stephen Breyer after law school. At age 27, he became a professor at Georgetown University Law Center in Washington, D.C. He also is a partner at the Hogan Lovells law firm.
He is perhaps best known for defending Salim Hamdan, Osama bin Laden’s chauffeur, before the Supreme Court in 2006, a landmark battle over presidential and congressional power. The case brought Katyal national prominence on an issue over the Bush administration’s 9/11 national security strategy. The administration was asserting broad executive power to wage the “war on terror.” Katyal and his team challenged then-President George W. Bush’s authority to set up military commissions to try Hamdan, one of more than 500 alleged enemy combatants detained at Guantanamo Bay detention camp in Cuba.
Katyal told the audience how he got involved in the case and about his first visit to Guantanamo to meet his client, a Yemeni who had been apprehended in Afghanistan in 2001.
“When I met him, he had been in solitary confinement for three years in a small cage,” Katyal recalled. ” I thought he would lash out at me. … Instead, he wanted to know why I had devoted so much time to his case.
“I said that my parents had come from India. They thought America was a place where people were treated equally, and their kids would have a better life. What’s happening at Guantanamo — the first military trials to single out foreigners — is fundamentally inconsistent with the tenets of being American. We are supposed to have equal protection under the law.”
Katyal and his legal team prevailed. The Supreme Court ruled, 5-3, in their favor in the case of Hamdan v. Rumsfeld.
Katyal told the audience that in 2011, while he was acting solicitor general, he publicly took to task one of his predecessors for hiding evidence and deceiving the Supreme Court in a major case, Korematsu v. United States, involving World War II rulings that upheld the detention of more than 100,000 Japanese Americans. A report from the Office of Naval Intelligence concluded that the Japanese Americans did not pose a military threat. In June, Chief Justice John Roberts announced that the court was overturning the 1944 Korematsu decision.
The Roberts announcement came during a court decision upholding, by a 5-4 vote, President Donald Trump’s ban on travel from several predominantly Muslim countries.
Katyal explained the background to that case, including his role as counsel for the state of Hawaii.
After the decision, Katyal said, he was surprised to receive a package from former New Hampshire Democratic Sen. Peter Burling, of Cornish, who was in the audience on Friday.
“It was his father John’s briefcase … and a note encouraging me to continue the fight,” Katyal said. John Burling helped establish Covington and Burling, the international law firm based in Washington.
In the question period, Katyal was asked about the future of the Supreme Court in light of the possible confirmation of Brett Kavanaugh, who was nominated by Trump to fill the seat vacated by Justice Anthony Kennedy and generally recognized as the court’s “swing vote.”
Katyal said that at least four important issues could be affected: Reproductive rights, college affirmative action policies, same-sex marriage and LGBT rights, and the death penalty.
He also speculated that if Democrats were to win the White House in 2020, there could be a move to enlarge the Supreme Court beyond its current nine members.
Katyal, who revealed that “I love this place,” said in an interview that he was especially pleased to visit the area this time because the oldest of his three sons, Rem, 16, is “wrapping up a two-week debate camp at Dartmouth,” repeating the experience of his father, who attended the camp as a Chicago high school student.
Tom Blinkhorn can be reached at tblinkhorn@gmail.com.