Katyal Advocates 'Institutionalized Dissent' in Global Forum
For Neal Katyal, former acting solicitor general of the United States, speaking in the nation's "marble palace," the U.S. Supreme Court, is a familiar experience. However, the Hogan Lovells partner took to a very different stage and audience on September 9 as part of the centennial anniversary of the Peace Palace, home of the International Court of Justice in the Hague.
Katyal was invited to the palace with eight others by TEDxHagueAcademy, part of TED, a nonprofit organization that annually invites the world's leading thinkers and doers to share "world-changing ideas." Each speaker has 18 minutes to explain his or her ideas. The speeches are videotaped and then made available for free to the world.
Past speakers have included Microsoft's Bill Gates, former Vice President Al Gore, former British Prime Minister Gordon Brown, Indian entrepreneur Nandan Nilekani; French creator, designer and architect Philippe Starck, and British primatologist Jane Goodall.
Clad in sports coat, sports shirt and sneakers, Katyal stood before a live audience as his speech, "Standing Up for the Rule of Law in an Age of Terror," was live streamed on TED's website. He offered viewers what he called a simple idea: "institutionalize dissent"—allow dissent to flourish in government, not just between agencies but within agencies. If government becomes a "tool of dissent," he said, answers can be found to controversies, such as the use of drone strikes and government surveillance.
He noted that the CIA has its so-called Red Cell—employees charged with thinking outside the box and producing thought-provoking analyses. The Department of State, he added, has a dissent channel for cables sent from anywhere in the world, which high department officials are required to read.
"There is no standing body to argue against drone strikes and surveillance," he said. "We can change that."
Conference organizers reached out to Katyal about six months ago to ask if he was interested, "and I said I was," Katyal recalled.
In his speech, he told the story of the internment of Japanese-Americans during World War II and the Supreme Court challenge to that internment by Kiyoshi Hirabayashi, as well as an account of the post-September 11 executive order establishing military trials for Guantánamo Bay detainees and Salim Hamdan's Supreme Court challenge to those trials.
Katyal, who represented Hamdan, called himself "living proof" that the checks and balances created by the U.S. Constitution work. The military trial order went too far, he said, and the Supreme Court so held. Sometimes, however, the checks and balances fail, as they did in the Hirabayashi case, he said. The government confessed error to the Supreme Court 70 years after Hirabayashi lost his case in a statement delivered by Katyal when he was the government's top lawyer before the court.
"The true measure of a great nation is not that it doesn't make mistakes—it will," he told the audience, "but what it does about those mistakes."
Following the speech, Katyal told The National Law Journal that he had been thinking a lot about these issues for some time.
"I wrote a 2006 Yale Law Journal article about 'Internal Separation of Powers' which was about this idea of checks and balances within the executive branch itself," he explained. "This past summer, I started writing a lot more about the subject—spurred by an op-ed I wrote in The New York Times in February about drone strike courts—in which I advocated for an internal panel. I'm writing a longer piece fleshing it out and also providing examples such as NSA surveillance and how it would work there."
The Peace Palace speech was the first of several things he wants to do.
"I accepted the invitation because it was a place to start the discussion, and with an international audience that I expected would be a bit more skeptical about the genius of America's founders than folks in the United States," he said.
"I know when I extol how America, and its system of government, is exceptional and the best on earth, I'm going to get some negative feedback in a place such as the Hague—but that's part of why I wanted to do it here. Because I want to use these examples to show how incredible our system is, and how its accommodation of dissent is one of the things that enables it to adapt to the various crises of human affairs, as Chief Justice [John] Marshall once put it in McCulloch [v. Maryland]."
And speaking at the Peace Palace, he said, "was just wonderful—it's a beautiful old building with modern parts to it—and the speakers and Dutch government were so incredible at every turn in hosting us."
The other speakers addressed such topics as stopping sexual violence in India; forgiveness: the unpopular weapon; making Afghan victims' memories and stories matter; the struggle for justice in Guatemala; why the Chinese have to be involved with international justice and international justice on trial.
Contact Marcia Coyle at email@example.com.