Visiting Professor Neal Katyal '95 testified before the Senate Judiciary Committee on November 28. He addressed the general topic of preserving our freedoms while defending against terrorism, and focused on the constitutionality of two recent executive orders: the presidential order authorizing military tribunals and the attorney general's order permitting the Justice Department to monitor communications between attorneys and their clients.
In both cases, Katyal argued that "the president hasn't made the case either to the American people or to Congress for why these drastic actions are necessary." As a former national security advisor for the Department of Justice and a constitutional scholar, he has experience with "the intersection between the separation of powers and terrorism investigations," and he sees a dangerous precedent in the president's unilateral orders.
"If we are going to do this," Katyal says, "it should be through an act of Congress, not the action of one man." He points to a statement by James Madison in one of the Federalist Papers: "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."
Katyal's recommendation was that Congress "should ask the President not to use the tribunals until necessary authorizing legislation is passed, and should immediately commence hearings to determine whether military tribunals are appropriate and, if so, how they should be constituted."
(Note: To view the testimony online, you need to have RealPlayer installed on your computer. Katyal's testimony begins at about the 3:45:35 mark.)